State Pregnancy Exclusions are Bad Law

This guest post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, in reverse chronological order, click here.

by Katherine Taylor, J.D., Ph.D.
College of Nursing and Health Professions, Drexel University

The Munoz case brought public attention to the Texas “pregnancy exclusion” law included in its Advance Directives Act, which says that life-sustaining treatment may not be withheld or withdrawn from a pregnant patient. Thankfully the state judge held that this law did not apply to Ms. Munoz because she was dead, and the hospital acceded to his order that Ms. Munoz’s body be released to her husband and put to rest.

These pregnancy exclusion laws exist not just in the “red” state of Texas, but in thirty-one states across the nation. I first wrote about these laws in a 1997 law journal article but the legal landscape remains essentially unchanged almost two decades later. Rather than using space summarizing these laws, I want to briefly sketch out some reasons why the exclusions are a very bad idea. The Munoz tragedy helps me illustrate my points.

What are the interests at stake in these cases? Ms. Munoz was dead, so some argue that she had minimal interests to be weighed against that of the state in the nonviable fetus (except there has been neglect of her, or society’s, interest in having her body respectfully treated rather than being used for experimental fetal gestation against her wishes and those of her family).  But other interests also have weight.

Ms. Munoz had an important interest in controlling in advance whether to refuse life-sustaining treatment. It is this interest that advance directive statutes convert into a legal right to execute a living will and appoint a health care proxy. Yet that right is given by these statutes with one hand and taken away by the other –the Texas pregnancy exclusion conferred on Marlise Munoz a lesser right than others to refuse life sustaining treatment in advance (as she orally did), because her right was made conditional on whether she was pregnant when the treatment would be removed.  The fact that she was only 14 weeks pregnant did not matter in Texas, and would not matter in most states that have enacted pregnancy exclusions. The question becomes whether women’s interest in prospectively making their end of life wishes known outweighs the state’s interests in a nonviable fetus. I believe it does.

Erick Munoz also had critical interests at stake. Surely Mr. Munoz had an interest in whether his wife’s body should be used to gestate the fetus, one that was not developing normally. Whether the child was healthy or not, Mr. Munoz would be the parent responsible for raising it. The Supreme Court made clear in Casey and other cases that persons have a liberty interest in controlling their procreation. Men’s procreative interest is rightly subordinated to a pregnant woman’s because of her bodily integrity. But when the woman is going to die, or is dead, the husband’s interest in avoiding reproduction should also come into play. The arguably experimental nature of the use of Ms. Munoz’s body also should require his permission. And again, family members should expect to be able to respectfully lay to rest the bodies of their loved ones. These interests, of Marlise and Erick Munoz, should outweigh the state’s interest in forcibly using a pregnant woman’s body to host a fetus that is not separate from its mother.

Yet that (more traditional) analysis is still incomplete because it is far too narrow. If we train a broader lens on the pregnancy exclusions, as we should, it becomes clear that the exclusions are part of a larger “pro-life” trend to treat fetuses as separate persons and patients. Nationwide, this trend translates into scary and grossly unjust scenarios where women lose their bodily integrity, autonomy, and inviolate legal personhood. Once the state sees the fetus as a separate person, it goes on to justify degrading pregnant women’s own legal status in numerous contexts of which we are all aware, from forcing pregnant women to undergo cesareans, criminally punishing them for causing the death of the fetus, to putting them in jail for having used drugs in their pregnancy. States have furthered that agenda by interfering with the ability of physicians to give good care to their patients according to accepted medical standards, and clearly the pregnancy exclusions do the same. When we do not explicitly recognize this larger context of women’s subordination, we ignore the injustice to all women that the pregnancy exclusions pose. Indeed, as I argue in my article, the pregnancy exclusions should constitute a violation of women’s equal protection rights.

Women’s extreme self-sacrifice, their role as the “moral proletariat” as Annette Baer described, is too often taken for granted. I end with summary thoughts from my article:

[The] pregnancy restrictions … accord women only conditional liberties, based on the social stereotype that women’s role as mothers appropriately requires of them extreme self-sacrifice for their offspring.  However, no matter how entrenched . . .  [that] stereotype may be . . . the state must protect against the legal imposition of that role, lest women become second-class citizens under law. Though women, like men, usually shoulder a complex set of relational identities, such as parent, child, sibling, and friend, it is of utmost importance that in the eyes of the state, women, like men, should be first and foremost independent persons with vital liberties deserving of vigilant protection.  Just as women’s moral agency should not be degraded because of their relational ties, so also their political agency should not be secondary to the uses to which they may be put for others.

Marlise Munoz’s body should not have been callously and forcibly used by the state as a means for fetal ends, and nor should any other pregnant woman’s body, whether she is dead or alive.

Why Is Brain Death Death? A Thought Experiment

This guest post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, in reverse chronological order, click here.

by James Zisfein, M.D.
Chief, Division of Neurology, and Chair, Ethics Committee, Lincoln Medical Center

The Munoz case in Texas demonstrates that, with aggressive medical treatment, vital functions in some brain-dead patients can be maintained for weeks or months. Shewmon documented similar cases and coined the term “chronic brain death”. Is it still reasonable to continue using the brain death standard as a criterion of death if the rest of the body can maintain somatic integrative functions, including cardiovascular homeostasis, for a prolonged period without the brain? Some commentators question whether the “enduring utilitarian legal fiction of whole brain death as death has passed its sell by date.”

Notwithstanding those concerns, I must remind the reader that, as a practical matter, the brain death standard usually works well. Families understand the finality of death. The brain death standard allows for unilateral removal of medical support in what many of us feel is an extreme example of futility. It also provides the major source of vital organs for transplant, of which I will have more to say later. I’m happy with justifying brain death on utilitarian grounds alone.

But if we insist on philosophical underpinnings, it’s time for a thought experiment. In this experiment, I will dismember Michelle (virtually, of course, and with her permission). Let’s start by removing relatively unimportant parts, say the appendix, some lymph nodes, maybe the spleen. After doing that, we can agree (I hope) that Michelle is still Michelle.

Then we go for more important stuff. Arms and legs? No problem. Kidneys? We can substitute for their function with dialysis or a transplant. Michelle is still 100% Michelle. The removed parts are therefore irrelevant to Michelle’s personhood.

We’re not finished yet. Michelle’s heart can be removed and replaced with a donor heart, or a mechanical pump. (So much for the cardiac definition of death.)

You know where I’m going with this. The only body part that can’t be removed or replaced without changing its owner is the brain.

If we could remove Michelle’s brain and replace it (horrors!) with my brain, the resultant person would be me, with body parts that used to belong to Michelle. If we replaced Michelle’s brain with a computer, we would have a robot (albeit a rather fleshy and bloody one). In either case, Michelle would be gone.

It’s a short leap from this thought experiment to the realization that the irreversible loss of the brain, or its functions, is the irreversible loss (i.e., death) of the brain’s owner.

A less grisly argument, also based on personhood, would begin with a stipulation that all human beings are mortal. We are not allowed — by definition or otherwise — to convey immortality. That means we must always have some way of determining death.

With improving medical technology, that could become impossible. Absent a brain death standard, we could — at least in theory — keep someone alive indefinitely by continuing to change parts as they fail. Everything (other than the brain) that is vital could be substituted for, including the heart. Dr. Jarvik (of the Utah/Humana artificial heart project) boasted that his artificial heart could keep working for 300 years. After that? Put in another one, presumably an improved model. Voila, immortality. Not acceptable. The risk of “chronic brain death” that Shewmon cited, is, paradoxically, a good reason for having a brain death standard.

And we must consider the utilitarian importance of brain death for organ donation. Whistling past the graveyard: that’s how I would characterize ending the brain death standard of determining death, without (1) prior abolition of the “dead donor rule” (which states that vital organs can be taken only post-mortem) and (2) seeing how many pre-mortem donors that yields. I believe there would be strong resistance to ending the dead donor rule anywhere, let alone all 50 states, and that the number of pre-mortem vital organ donations would be small even if it were permitted.

Removal of the brain death standard, in the absence of legal and widely practiced pre-mortem organ donation, would likely cause thousands, perhaps tens of thousands of deaths on the organ waiting list. Allowing that calamity for the sake of ethical purity would place one’s ethics on a par with the Khmer Rouge.

For now, and for the foreseeable future, brain death is a criterion of death. It’s up to those of us who work in health care, ethics, and law to speak with clarity when communicating on this topic to the media, to courts, to bereaved families, and to our colleagues.

Musing about Munoz

This guest post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, in reverse chronological order, click here.

by Jeffrey R. Spike, Ph.D.
Professor of Ethics and Samuel Karff Chair at the McGovern Center for Humanities and Ethics, UTHealth, the Academic Health Science Center for the University of Texas at Houston

Now that the legal and emotional drama has ended, it is a good time to think about what happened.

First, the legal and political forces in Texas showed a little more restraint than similar ‘pro-life’ forces in the Schiavo case.  Once a judge ruled that the Texas statue (TADA) did not apply, there was no appeal.  While less than a rock solid legal precedent, the ruling and lack of appeal should curtail future cases from proceeding down this path—hopefully in any state that has written a ‘pregnancy exclusion’ into their advance directives law.

Second, sad as the conclusion is, I doubt many people feel like two people died when the ventilator was stopped.  Rather, we have an interesting contrast that defines when a person’s life exists: the fetal life was not yet a person, and the deceased woman’s life was over and she was no longer a person.  No person died when they turned off the ventilator.

This interpretation helps us see why it was wrong to analyze the case as a situation where there once were two persons whose lives we hoped to save, and then only one person was left whose life we hoped to save.

Of course religious language likes to imbue objects with spiritual qualities.  It can make one sound deep, like a prophet.  But it can also mislead.  The terrible tragedy in this case occurred 6 weeks ago, on November 26.  All we have accomplished by keeping this pregnant woman in the ICU is to prolong the tragedy.

The one thing missing from every account was any ethics consultation service involvement.  Perhaps, like many hospitals, JPS has an ethics committee in name only, and there was never any ethics involvement.  In that case, the most important lesson might be the one that the Quinlan court taught us in 1976: do not go to court, keep these decisions at the bedside, and if you need help, ask for ethics involvement.

Would Marlise Munoz’s Fetus Have Survived? Should It Have?

This post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, in reverse chronological order, click here.

by Michelle N. Meyer, J.D., Ph.D.
Assistant Professor and Director of Bioethics Policy, Union Graduate College-Icahn School of Medicine at Mount Sinai School of Medicine Bioethics Program

Had the hospital not relented and removed the ventilator from Marlise Munoz’s body, could the Munoz fetus have been brought to term, or at least to viability? And if so, would the resulting child have experienced any temporary or permanent adverse health outcomes? Despite some overly confident commentary on both “sides” of this case suggesting a clear answer one way or the other—i.e., that there was no point in retaining the ventilator because the fetus could never be viable or was doomed to be born with catastrophic abnormalities; or, on the other hand, that but for the removal of the ventilator, the “unborn baby” was clearly on track to being born healthy—the truth is that we simply don’t know.

Before getting into the limited available data about fetal outcomes in these relatively rare cases, a bit of brush clearing. The New York Times juxtaposed reports about possible abnormalities in the Munoz fetus with the hospital’s stipulation about the fetus’s non-viability in ways that are likely to confuse, rather than clarify:

Lawyers for Ms. Muñoz’s husband, Erick Muñoz, said they were provided with medical records that showed the fetus was “distinctly abnormal” and suffered from hydrocephalus — an accumulation of fluid in the cavities of the brain — as well as a possible heart problem.

The hospital acknowledged in court documents that the fetus was not viable.

Whether intentionally or not, the nation’s newspaper of record implies — wrongly, I think — that the hospital conceded that the fetus would never be viable because of these reported abnormalities. In court, the hospital and Erick Munoz stipulated to a series of facts, including that Marlise was then 22 weeks pregnant and that “[a]t the time of this hearing, the fetus gestating inside Mrs. Munoz is not viable” (emphasis added). The hospital conceded nothing at all about any fetal abnormalities. In short, the Times, and many other commentors, have conflated “non-viability” as a function of gestational age with “non-viability” as a way of characterizing disabilities that are incompatible with life. As I read this stipulation, the hospital was not at all conceding that the fetus would never have been viable, had the ventilator remained in place. Rather, given the constitutional relevance of fetal viability, the hospital was merely conceding the banal scientific fact that the Munoz fetus was, at 22 weeks, not currently viable. There is nothing surprising in the least about the hospital’s “concession” about “viability” in the first sense, above: 22-week fetuses are generally not considered viable.

But what about the health of the Munoz fetus, which Erick’s lawyers, in the midst of arguing for the ventilator to be removed, reported showed signs of being “distinctly abnormal“? There’s little point in speculating about what are at this point (and are very likely to remain) vague, second-hand reports of private medical records, and still less about the possible causes of any abnormalities, which may have been genetic. Rather, let me make two observations about relying on reports (even if verified) of fetal “abnormalities” to argue for the removal of the ventilator.

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Fetuses, Organs and Brain-Death

This guest post is part of The Bioethics Program‘s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, click here.

by Pablo de Lora, Ph.D.
School of Law, Universidad Autónoma de Madrid

One of the things that strikes me in the debate over whether a State has a sufficiently compelling interest in sustaining the physiological functions of a dead-brain pregnant woman in order to protect the life of the fetus, is that this very same rationale is not appealed to when we consider the many lives that are at stake when the deceased, or someone else — typically the next-of-kin — decides not to donate its organs after death. So, if the commitment of Texas — or any other State — with the protection of “human life” is sincere, if we can finally agree on that interest as being as compelling as to permit legislation restraining the woman’s right to refuse or terminate end-of-life care when she is pregnant, and their families’ right to bury or cremate their relative once it is pronounced legally dead, wouldn’t that rationale also legitimize the confiscation of dead-brain people in general in order to harvest their organs for the sake of saving the lives of others? I think coherence mandates so.

Actually, our reasons for such conscription in the case of organs’ harvesting are much more compelling than in the case of Marlise Muñoz if we take into account the fatal prognosis of the fetus, the experimental character of the continuation of pregnancy in a brain-dead woman, and the better expectations that we might nowadays have when we transplant organs.

[Cross-posted at Bill of Health]

The Concept of Brain Death and the Tragic Cases of Marlise Munoz and Jahi McMath

This guest post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, click here.

by Ryan Abbott, M.D., J.D., M.T.O.M.
Associate Professor of Law, Southwestern Law School, and Visiting Assistant Professor of Medicine, David Geffen School of Medicine at UCLA

Historically, death has been a very simple and intuitive thing to understand – it occurs when someone stops breathing and their heart stops. Visually, it is a dramatic change that anyone can comprehend.

However, we now live in an age where machines can keep people breathing, and their hearts beating, when they would otherwise die. These medical advances have been revolutionary, and they are vital to allowing living patients to recover after severe illness or injury. On the other hand, they can make it more difficult for people to accept and understand death, because it can make dead patients “appear” alive.

Brain death refers to the irrevocable loss of all functions of the brain, including the brainsteam. Someone with brain death is just as dead as someone who has stopped breathing and whose heart has stopped. Doctors confirm brain death through a neurological examination, and once diagnosed the patient is dead. That person will never have any brain functioning and will never return to life or “wake up.”

That, of course, is a difficult concept to explain to people without medical training, and who don’t understand how the brain and body work. To family members, a loved one with brain death on life support has some of the features they associate with being alive. For example, a video now circulating online that purports to show Jahi McMath responding to stimulation may simply demonstrate that some reflexes may persist after brain death, such as a Babinski’s reflex that causes the big toe to move upward while the other toes fan out in response to the sole of the foot being firmly stroked. Grieving family members are, understandably, sometimes unable to accept a diagnosis of brain death.

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Physician Authority to Make the Determination of Death: Why It Matters

This guest post is part of The Bioethics Program’s Online Symposium on the Munoz and McMath cases. To see all symposium contributions, click here.

by James Zisfein, M.D.
Chief, Division of Neurology, and Chair, Ethics Committee, Lincoln Medical Center

Why does it matter, to those of us involved in clinical ethics, that physicians are losing the authority to determine that a person has died?

I offer several reasons, in increasing order of importance:

Firstly, there is the (wasted) financial cost of maintaining dead people in critical care beds. However, even with the loss of physician authority to determine death becoming more common (due to publicity surrounding the Jahi McMath case), this cost is but a small fraction of our national health expenditures.

A more important reason is damage to professional integrity. The damage cannot be easily measured, but it’s real. The most bitter complaint I hear from critical care nurses is regarding their wasted efforts to prolong the lives of the imminently dying, and how that infringes on their time available to help patients with a chance to recover. (I don’t think they’ll be much happier ministering to the already dead.) And we have to also acknowledge the feelings of us neurologists and intensivists who use our extensive training and skill to make a correct determination of death only to see it nullified by angry but ignorant families, inept hospital administrators, and [unprintable] court rulings. Personally, it makes me wonder why the hell I’m doing this.

Thirdly, there will be inevitable loss of transplantable organs. As more and more families doubt the accuracy of determinations of death and assert dubious religious objections, and get supported by courts, there will be more and more lives lost on transplant waiting lists. It is already a far too common heartbreak when a child or young adult dies from liver failure, and the death could have been prevented. Prepare for a lot more heartbreak.

But the most important reason for allowing physicians to do their jobs — to determine death properly by medical standards — is for the sake of bereaved families. They have already suffered a tremendous loss, and introducing doubt about the fact of death or possibility of recovery does not change the outcome. It only intensifies and prolongs their anguish.

That’s why I think it matters. Any other takers?