Texas Law Keeping Brain Dead Woman “Alive” Because She’s Pregnant
A woman in Texas who is apparently brain dead is currently spending her sixth week on artificial life support thanks to a Texas law that forbids hospitals from removing pregnant women from life support regardless of what any Living Will might say:
FORT WORTH — The diagnosis was crushing and irrevocable. At 33, Marlise Munoz was brain-dead after collapsing on her kitchen floor in November from what appeared to be a blood clot in her lungs.
But as her parents and her husband prepared to say their final goodbyes in the intensive care unit at John Peter Smith Hospital here and to honor her wish not to be left on life support, they were stunned when a doctor told them the hospital was not going to comply with their instructions. Mrs. Munoz was 14 weeks pregnant, the doctor said, and Texas is one of more than two dozen states that prohibit, with varying degrees of strictness, medical officials from cutting off life support to a pregnant patient.
More than a month later, Mrs. Munoz remains connected to life-support machines on the third floor of the I.C.U., where a medical team monitors the heartbeat of the fetus, now in its 20th week of development. Her case has become a strange collision of law, medicine, the ethics of end-of-life care and the issues swirling around abortion — when life begins and how it should be valued
“It’s not a matter of pro-choice and pro-life,” said Mrs. Munoz’s mother, Lynne Machado, 60. “It’s about a matter of our daughter’s wishes not being honored by the state of Texas.”
Mrs. Munoz’s father, Ernest Machado, 60, a former police officer and an Air Force veteran, put it even more bluntly. “All she is is a host for a fetus,” he said on Tuesday. “I get angry with the state. What business did they have delving into these areas? Why are they practicing medicine up in Austin?”
Mrs. Munoz’s parents said they wanted to see the law overturned, but they have not sought any legal action against the hospital, though they have not ruled it out either.
The hospital maintains that it is following the law, although several experts in medical ethics said they believed the hospital was misinterpreting it. A crucial issue is whether the law applies to pregnant patients who are brain-dead as opposed to those in a coma or a vegetative state. The law, first passed by the Texas Legislature in 1989 and amended in 1999, states that a person may not withdraw or withhold “life-sustaining treatment” from a pregnant patient.
Medical ethicists are puzzled by the position the hospital is taking:
Legal and ethical experts, meanwhile, said they were puzzled by the conflicting accounts of her condition. Brain death, an absence of neurological activity, can be readily determined, they said. It is legally death, even if other bodily functions can be maintained.
If she is dead, I don’t see how she can be a patient, and I don’t see how we can be talking about treatment options for her,” said Thomas W. Mayo, an expert on health care law and bioethics at the Southern Methodist University law school in Dallas.
Arthur L. Caplan, director of medical ethics at NYU Langone Medical Center in Manhattan, agreed. “The Texas Legislature can’t require doctors to do the impossible and try to treat someone who’s dead,” Mr. Caplan said. “I don’t think they intended this statute the way the hospital is interpreting it.”
The restrictive measures were largely adopted in the 1980s, with the spread of laws authorizing patients to make advance directives about end-of-life care like living wills and health care proxies, said Katherine A. Taylor, a lawyer and bioethicist at Drexel University in Philadelphia. The provisions to protect fetuses, she said, helped ease the qualms of the Roman Catholic Church and others about such directives.
Critics of the hospital’s actions also note that the fetus has not reached the point of viability outside the womb and that Ms. Munoz would have a constitutional right to an abortion.
“These laws essentially deny women rights that are given others to direct their health care in advance and determine how they want to die,” Ms. Taylor said. “The law can make a woman stay alive to gestate the fetus.”
The statute in question is contained right in the part of the Texas Code that permits people to create Living Wills, or as they are called in some states, Advance Medical Directives and is fairly short and straightforward, saying simply that “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.” There does not appear that there is any way under Texas law that a person drafting a Living Will can void this provision of the law. Additionally, it doesn’t appear that the law makes any distrinction regardng the condition of the patient, meaning that someone such as Mrs. Munoz, who is effectively dead for all intents and purposes, and there is also no distinction made between someone who is, say 8 1/2 months pregnant and someone who, like Munoz was when she was first taken to the hospital, is only 3 1/2 months pregnant, which is far outside any reasonable range of viability, and her current 5th month of pregnancy is, at the very least, at teh very outer edges of fetal viability. Indeed, under this law, it would appear that under this law, a woman who is a mere few weeks pregnant and reports to the Emergency Room in a condition that eventually evolves into brain death would be forcibly kept alive for the next 8-9 months regardless of what her wishes might be as expressed in an otherwise legal document, and despite the wishes of her closes family members. This is, to say the least, not only fundamentally absurd but absolutely cruel and inhuman.
Not surprisingly, the “pro-life” crowd thinks all of this is a great idea:
In Texas, the law and the hospital’s efforts to abide by it have drawn support among opponents of abortion. “The unborn child should be recognized as a separate person,” said Joe Pojman, executive director of Texas Alliance for Life. He added, “I would say that, even if she were brain-dead, I would favor keeping treatments going to allow the child to continue to survive, with the hope the child could be delivered alive.”
Indeed, that last part raises a good point. Even if the hospital keeps this poor shell of a woman alive to the point of fetal viability, there’s no guarantee that they will be able to deliver a healthy baby, or that the fetus is currently being harmed by the treatment being used to keep the shell that was once its mother alive. And what are these “pro life” advocates going to do if the child is born? Are they going to help its father raise the child? Are they going to explain to the child why they were in favor of keeping its mother alive as some kind of weird semi-human incubator so it could be born? And who is going to pay the mounting medical bills from this situation?
If Marlise Munoz didn’t already have a Living Will when she was tragically and suddenly struck down, or if the fetus in question were far closer to viability than it was at the time that this happened, then I might see the logic and humanity in keeping her alive long enough for the fetus to be ready to be born. Even then, though, I’d say that the state and the hospital ought to defer to the wishes of the family in the end. Cases like this, though, are nothing more than monumentally cruel, not only to the rights of Mrs. Munoz, but also to her dignity as a human being and the suffering that her family has no doubt been living through for the past two months. This being Texas, it’s unlikely that this law, first adopted all the way back in 1989, will be changed any time soon, but it most certainly ought to be.