16 and Pregnant: The Tragic Case of Rennie Gibbs

by Jacob Dahlke, Bioethics Program Alum (MSBioethics 2012)

Rennie Gibbs was 15 years old when she found out she was pregnant. In late 2006, then 16 and pregnant 36 weeks, she was admitted to a hospital in Lowndes County, MS, diagnosed with fetal demise and induced to gave birth to a stillborn baby named Samiya. A urine test detected marijuana and cocaine in Ms. Gibbs’ system upon admission. An autopsy revealed that Samiya’s death was most likely due to the umbilical cord wrapping around Samiya’s neck, causing blood supply to be cut off. But that interpretation of the autopsy report is not what was given days after Samiya’s death, when Samiya’s death was ruled a homicide and Ms. Gibbs was subsequently indicted for murder. The claim was that, because Rennie had smoked crack during her pregnancy, she had caused the death of her baby. Under Mississippi statute, that constitutes murder if one’s acts are “eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual”. A judge is expected to rule later this week as to whether the case will continue or be dismissed.

On its face, the legal perspective would seem laughable were it not real. The case highlights the problems of Mississippi’s medical examinations and the ‘medical examiner’, Steven Hayne.  I use quotations because of Hayne’s reputation for being, well, spectacularly corrupt. For example,

       “Here’s how it works: Each county in Mississippi elects a coroner to take the lead in conducting
       death investigations. The job requires no prior training, medical or otherwise – only a high
       school degree. If a death appears to have been caused by criminal activity, the coroner will
       consult with the local district attorney. Between the two of them, they’ll then refer the body to a
       private medical examiner for an autopsy. If a crime did occur, that medical examiner will likely
       then be asked to testify at trial. The system … encourages prosecutors and coroners to send
       bodies and the fees that come with them to medical examiners they trust … it undermines the
       notion of an adversarial criminal justice system. Medical examiners who have a financial 
       incentive to keep prosecutors and coroners happy end up testifying against indigent 
       defendants who can’t afford to hire their own experts to review the state expert’s work. At the
       center of all of this is a Rankin medical examiner Dr. Steven Hayne, the man who over the last
       20 years has come to dominate Mississippi’s autopsy business.” (emphasis mine)

(Much more on Hayne has been excellently written by Radley Balko; it is interestingly infuriating, but you may wish to shower after. Mississippi seems to have improved since severing ties with Hayne in 2008 and contracting services out to a company from Tennessee).

Perhaps more interestingly, Ms. Gibbs’ attorneys appear poised to challenge the medical evidence associating prenatal cocaine use with fetal harm, which may further bolster their case. Researcher Deborah A. Frank’s affadavit indicates there is “no consistent association between cocaine use during pregnancy and serious fetal harms; … no convincing evidence that prenatal cocaine exposure is more strongly associated … than exposure to… tobacco and alcohol”. Their argument: there simply is no causal connection between the drugs in in Ms. Gibbs’ system and the Sayima’s death. Besides that, there were only trace amounts of a derivative of cocaine, which is a significant departure from the “cocaine toxicity” indicated by Hayne in the autopsy report.

But I am less interested in the legal perspective of the case than I am about the ethical ones. For example, what if anything does this case say about reproductive rights in Mississippi?

It may be relevant to consider Ms. Gibbs’ actions from one of two perspectives. First, what if Ms. Gibbs did not want to have a baby? Second, what if she did want to have the baby? This puts her case into a sort of discussion about abortion rights, and focuses on her actions as a function of her intent. While intent does not seem to matter in terms of Mississippi law, it can matter ethically.

Let’s consider first if Ms. Gibbs did not want to continue her pregnancy. As a teen, consideration is often given to parents’ wishes for their children. Children do not yet have the capacity to make decisions for themselves and we thus seek the decision from parents. This autonomy is something that emerges over time, congruous with a person’s development to adulthood when decisions can be made independently and autonomously. As children begin to demonstrate this ability to consider their own decisions and their impact, the decision-making process moves from assent (parents consenting, and the child agreeing) to consent (child consenting). Ms. Gibbs was at that threshold when this transition typically occurs, meaning she would likely have had the ability to make the decision about her pregnancy autonomously.

If we are to assume that Ms. Gibbs did not want to continue the pregnancy, but could not get an abortion, then her options may have been further limited. Could Ms. Gibbs’ drug use constitute actions taken to terminate the pregnancy on her own? It would be difficult for anyone to legally prove her intent, but from an ethical perspective it matters. If she were trying to terminate the pregnancy on her own by using or abusing drugs, then her situation could be considered similar to an abortion. This is at least plausible, since abortion would have been rather difficult for Ms. Gibbs at the time. Lowndes County sits on the eastern border with Alabama, about 120 miles west of Birmingham. The closest clinic is in Tuscaloosa, AL, 60 miles away. While they appear to address the needs of MS women, the mere fact of having to cross state lines to get an abortion may be a barrier. There is exactly one clinic that provides abortion in Mississippi, 150 miles away in Jackson. It seems to face consistent pressure and scrutiny to even keep its doors open. Her age would have been a barrier, though; in Mississippi consent is required by both parents, with exceptions for judicial permission or medical emergency (threatening the life of the mother). If she were attempting to abort the fetus in the absence of professional assistance, it would likely be ethically justified, although not recommended. The risk of harms would be much greater than a clinically assisted abortion – both to Ms. Gibbs and to a potential baby that essentially survives an abortion attempt with likely significant health problems. But justified still, since Ms. Gibbs could evaluate the benefits and harms of continuing the pregnancy versus ending it in this way. Autonomy allows a person to make choices that appear unwise and even sometimes unsafe based on this evaluation of benefits and harms.

Perhaps it is wrong to construct a narrative around Ms. Gibbs’ actions that indicates her desire to end the pregnancy. Perhaps she did indeed wish to have the baby, meaning that her actions tell a different story. For an autonomous individual (if we presume she is) to make decisions that definitively add risk to a situation, there are a couple of likely reasons. The first and most likely is a lack of understanding that the specified action (drug use during pregnancy) can cause harms. In this regard, there could be a entire volume of reasons for why Ms. Gibbs was not educated on these matters, none of which matter except for noting that they exist. The second reason that may have compelled Ms. Gibbs to her actions is also likely, in my opinion: She was a teenager, and teenagers (in addition to gaining autonomous capabilities) tend to test the limits imposed on them, and this can often be expressed in using various drugs. Even if there was some correlation between her drug use and her stillborn baby (remember, there is not), it is difficult to see how charging a teenager with murder would improve anything, except as perhaps some ‘cautionary tale’ to warn other teens not to do drugs or get pregnant. Except that doesn’t work.

I cannot say that a better health care system, or better schools that teach responsible sexuality, or better access to abortion, or any other broad factor could have avoided this scenario. But I do envision a situation in which we do have all of those things, and I imagine if this would then be a ‘cautionary tale’ for others. Instead, in reality, I fear that it represents ‘more of the same’.

[This blog entry was originally posted in a slightly different form on Mr. Dahlke’s blog on March 19, 2014. Its contents are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

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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.