by David Orentlicher, MD, JD
Samuel R. Rosen Professor and Co-Director, Hall Center for Law and Health, Indiana University Robert H. McKinney School of Law
While the Texas state court probably rendered the right decision in the case of Marlise Munoz, the court and the hospital viewed the case through the wrong legal lens. As Thomas Mayo and others have argued, it did not make sense to invoke the Texas Advance Directives Act to impose treatment on Ms. Munoz for the benefit of her fetus. Nevertheless, other principles of law might justify treatment of some pregnant women—even after they are legally dead—for the benefit of their fetuses.
Ms. Munoz was 14 weeks pregnant when she collapsed at home. Subsequently, she was diagnosed as meeting the legal definition of death because of severe injury to her brain. As with some cases involving death from brain injury, intensive care could maintain Ms. Munoz’s heartbeat and her ability to gestate a fetus. The hospital believed it had a legal obligation to maintain Ms. Munoz’s cardiac function until her fetus was viable and could be delivered.
How should we analyze cases like that of Ms. Munoz? As a starting point, physicians should be guided by the principles that are employed when parents make medical decisions for their children.
Parents assume many duties of care to their children, especially the duty to provide necessities of life. To a considerable extent, those duties should begin before birth. The neurologic capacity of an infant is critical in determining its moral status (as reflected by the fact that lack of brain function signifies death), and fetuses develop a meaningful level of neurologic capacity well before birth and even before viability. Ordinarily, then, we should expect the parents of a fetus to ensure that it receives the support necessary to maintain its health, including appropriate medical care.
But duties to children and fetuses do not include a duty of parents to sacrifice their own health. Because of the risks to pregnant women from any pregnancy, abortions are freely permitted until viability. And even after viability, abortions are permitted to protect the pregnant woman’s health. Moreover, because of the risks to pregnant women from medical interventions, courts permit women to refuse cesarean sections and other medical treatments that would benefit their fetuses but pose risks to their own health.
In Ms. Munoz’s case, there was no risk to her health from the continued ventilation and other intensive care. Maintaining the life support for her fetus did not force her to accept duties to her fetus that are not imposed on parents to their children.
This is not to say that the hospital was correct in imposing care over the objections of Ms. Munoz’s husband. When children are suffering from serious medical problems, parents are allowed to choose between continuing or discontinuing care. According to reports, Ms. Munoz’s fetus was suffering from serious medical problems. If that was the case, Ms. Munoz’s husband should have been given at least as much discretion to decline life-sustaining support for his fetus as all parents are given for their children.
What about the interests of Ms. Munoz and her husband in avoiding unwanted parenthood? That interest is important, but it is not an interest sufficient to allow parents to neglect the needs of their children. Similarly, it should not be an interest sufficient to allow parents to neglect the needs of their fetuses after the point of meaningful neurologic development.
What about the interests of Ms. Munoz in being treated with respect even after death? Once we recognize the duties of parents to their fetuses, it is not disrespectful to pregnant women to ensure that they meet their duties, as long as we do not impose any risks to the women’s own health.
Note that the usual concerns about unequal treatment of women on account of pregnancy were not present in this case. To the extent that there were burdens from an unwanted pregnancy, they were—and would have continued to be—born much more by Ms. Munoz’s husband than by Ms. Munoz.
Just as the Munoz case should have been guided by principles of parental decision making, so should the other high profile case of medical care after brain death, the case of Jahi McMath.
Ms. McMath was only 13 years old when complications after surgery resulted in massive brain damage and a declaration of death. The hospital therefore decided to withdraw all care, but the parents objected because their daughter’s heart was still beating. Had Ms. McMath retained some neurologic function, she would still be considered alive, and the law would clearly recognize the authority of her parents to decide whether or not to continue providing care. That should not change by virtue of the declaration of death.
In the view of some people, the ability to maintain non-brain functioning means that the person is still alive. When people hold different and legitimate views about life and death, we should accommodate their views as much as possible. As the U.S. Supreme Court has observed, “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The distinction between life and death is a profoundly important distinction, but it is not always clear where the line between the two should be drawn. When we cannot be sure about matters of great importance to people, we should not impose a single approach on all.
New Jersey permits people to reject brain death on the basis of their religious beliefs and insist that death be declared only upon the loss of all cardiac function. Other states also should allow people to make the same choice and to reject brain death for non-religious reasons as well. In Ms. McMath’s case, her parents should be able to choose between brain death and cardiac death on her behalf.