Cheaper by the Dozen

by Sean Philpott-Jones, Director of the Center for Bioethics and Clinical Leadership

As a bioethicist, I appreciate the fact that the American public has become deeply engaged in a number of important health policy debates.

For example, should local, state and national agencies forcibly quarantine travelers coming from countries affected by the Ebola virus? Should public and private companies be required to provide employees with health insurance plans that include oral contraceptives if doing so runs counter to the religious beliefs of the owners? Should terminally ill cancer patient Brittany Maynard have the right to end her own life (which she did this past Saturday)?

One interesting story that slipped under the radar, however, was the recent announcement that two major corporations, tech giant Apple and social networking service Facebook, will now pay for female employees who want to freeze their eggs. These companies will cover the costs of extracting, freezing and storing eggs, even when this is done for non-medical reasons. This is a pretty substantial benefit, as the extracting the eggs can cost $20,000 or more. Storage fees can run an additional $1,000 a year.

This should be up for public discussion and debate. Although many people may disagree with me, I believe that these two companies (and those that follow their example) are making a big mistake. That is not to say that I don’t think that companies like Apple and Facebook shouldn’t provide coverage for fertility-related treatments like egg freezing as part of a comprehensive health insurance plan. They should, but only for medically justified reasons.

The technical name for egg freezing is oocyte cryopreservation, and it is a physically invasive and potentially risky procedure. Women must first take a cocktail of drugs called gonadotropins to hyperstimulate egg production, tricking their ovaries into producing a dozen or more eggs rather than one or two ova that are normally released during the normal monthly fertility cycle. Doctors then insert a long needle through the vaginal wall and into the ovary, sucking out the eggs and preparing them for long term storage.

As you might imagine, this is an extremely uncomfortable procedure. Most women experience bloating and abdominal pain, but more severe side effects are not uncommon. Nearly half of all women will experience a condition known Ovarian Hyper Stimulation Syndrome (OHSS), which may require hospitalization to treat the bleeding and severe fluid buildup that results. Errant needles can cause injury to the bladder, bowel and kidneys. Finally, the ovaries can develop scar tissue at the site of puncture or the drugs used for hyperstimulation can trigger early onset of menopause, resulting in infertility in both cases.

Moreover, while new techniques for freezing and storing eggs have improved to the point where over 90% of all cryopreserved oocytes survive the freeze-thaw process, far fewer of those eggs will lead to a successful birth via in vitro fertilization (IVF). According to the Society for Assisted Reproductive Technology, for instance, the rate of live birth among women aged 30 who used cryopreserved eggs for IVF is less than 25%. That rate drops to less than 10% for women over 40.

These concerns – safety, efficacy, and potential physical risks — are why professional organizations like American College of Obstetricians and Gynecologists (ACOG) and the American Society for Reproductive Medicine (ASRM) only support the use of egg freezing when medically necessary. Egg freezing should be done only as a last resort to protect fertility in women undergoing ovary-destroying cancer treatment, for example, rather than as a way to delay childbearing as a matter of choice.

Unfortunately, the latter is exactly what companies like Apple and Facebook are promoting. Covering the costs of oocyte cryopreservation for non-medical reasons reinforces the idea that professional women must choose between having a fulfilling career and raising a family. Moreover, even if a woman successfully delays childbirth by freezing her eggs, she has only delayed the inevitable. She must still confront a corporate culture that sees mothers as an economic liability.

If companies like Apple and Facebook truly want to support their female employees, they don’t need to pay for egg freezing. What they need to do is provide both female and male employees with the services and benefits necessary for meaningful work-life balance, including paid leave for new biological and adoptive parents, family sick leave, and subsidized daycare and preschool programs. Better yet, they should use their wealth and political connections to lobby our leaders in Washington to make such benefits the law of the land.

Until then, we’re still leaving most working women (and many working men) out in the cold.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on November 6, 2014, and is available on the WAMC website. The contents of this post are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

Sorry Kid, But Your Mom’s in Jail for Having You

by Patricia Mayer, MD, Bioethics Program Alumna (2009)

Last week the Tennessee legislature voted to approve a bill that criminalizes drug use in pregnancy. Mothers can now be charged with criminal assault if a child is born addicted, harmed or dies as a result of pre-natal use of narcotics. The bill, amended to preclude charges for women who voluntarily enter treatment, now goes to Governor Bill Haslam for signature or veto.

Tennessee eliminated these same criminal penalties just two years ago, deciding treatment made more sense than jail time. The state is now planning to reinstate these sanctions. This would make Tennessee the only state that allows criminal charges against drug-using pregnant women. Seventeen other states consider drug use during pregnancy to be child abuse subject to civil penalties.

Resurrecting criminal penalties for drug-using mothers is a response to pressure to halt the “epidemic of drug dependent newborns” reported by the Tennessee Department of Health. Interestingly, that same Department of Health report reports that the largest percentage of narcotic-addicted newborns was born to mothers taking “substances prescribed to them for legitimate treatment”. That, of course, is another conversation.

While no one is arguing that drug-addicted babies are a good thing, this approach is wrong in every way. First, it creates a new status of criminal. It is not illegal to be a drug addict according to the US Supreme Court (Robinson v. California). It is not illegal to be pregnant. But a person who is drug addicted and pregnant at the same time can be charged with a crime.

Second, this law flies in the face of all medical recommendations, including those by the American Medical Association, the American Pediatrics Association, and the American College of Obstetricians and Gynecologists (ACOG). The latter group issued a formal opinion in November 2005 that specifically condemned “punitive and coercive” approaches to addicted pregnant women. That opinion summarizes legal cases up to that point, reviews pertinent ethical principles, and reports six main objections to the punitive approach Tennessee is considering. In particular, medical societies, professional organizations and substance-abuse experts are convinced this law will discourage pre-natal care. What woman will admit to use of narcotics (legal or otherwise) if she thinks she might go to jail or have her baby taken away? Pro-choice advocates also oppose the bill, fearing that it will cause more women to get abortions in order to avoid criminal sanctions.

Third, the law makes no medical sense as written. The law refers to children addicted, harmed or who die as a result of a mother’s narcotic use. But far too many pregnancies have poor outcomes. Often, the exact causes of a poor outcome are unclear. The ACOG report particularly highlights the limitations of medical knowledge and predictions of birth outcomes. Will prosecutors now investigate every woman who has the misfortune of delivering a child with birth defects? Are we then going to prosecute women for stillbirths? In 1999, South Carolina did this with a cocaine-addicted mother whose child was stillborn. In that case, the grieving mother was convicted of homicide by child abuse, and sentenced to 12 years in jail. That case, upheld by the South Carolina Supreme Court, was refused a hearing by the US Supreme Court.

Fourth, these types of prosecutions disproportionally are directed at women of color. Despite similar rates of addiction in Caucasian and non-Caucasian women, multiple studies have found that women of color are uncommonly subject to criminalization of pregnancy related behaviors.

Finally, it is unclear who will benefit under this scheme. It certainly won’t benefit the addicted mothers, who will be in jail instead of in treatment. It won’t benefit the affected babies, who will have no chance to be with their families; mom will likely be in jail and unavailable to her baby. This is despite the fact that there is no proof drug addicted mothers do not care about their children. In fact, the opposite is true, and there is compelling evidence that women who have custody are more likely to complete treatment for addiction. Society is also unlikely to benefit. Taxpayers in Tennessee will end up paying for more inmates in prison and more children in foster care. Abortion rates and infant mortality rates could rise, as drug-using mothers selectively terminate their pregnancy or avoid pre-natal care out of fear that they will be arrested. None of these outcomes benefits society.

There are fatal flaws in this bill, and the Governor should not sign it. Tennessee (and all states) can do better than this.

[The contents of this blog are solely the responsibility of the author and do not represent the views of the Bioethics Program or Union Graduate College.]

If Hobby Lobby Wins, We All Lose

by Dr. Patricia Mayer, Bioethics Program Alumna (2009)

Late last month, the US Supreme Court heard oral arguments in the case of Sebelius v. Hobby Lobby Stores, Inc. The Supreme Court is currently considering whether Hobby Lobby, a privately owned chain of 640 arts and crafts stores, may deny its employees insurance coverage for things like birth control pills, emergency contraceptives and IUDs. Under the Affordable Care Act (ACA), employers are required to provide health care that covers all forms of contraception at no cost. However, the evangelical owners of Hobby Lobby argue that the company should not be required to provide contraceptive choices that violate the owner’s religious beliefs, particularly birth control methods that they believe “induce abortions”, such as the morning-after pill or the IUD.

Hobby Lobby’s owners are appealing to the Supreme Court for an exemption to the ACA contraceptive requirements on the basis of the Religious Freedom Restoration Act of 1993. That act stipulates the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”.

Now Hobby Lobby’s owners are not asking for exemption from the obligation to provide insurance. In fact, they believe that providing heath insurance to their 14,000+ employees a moral obligation, but they do not want to pay for an insurance plan that covers certain types of contraceptives. They’ve even stated publicly that this obligation to provide their employees with health insurance is so strong it precludes them from discontinuing insurance coverage (instead of paying a new tax under the employer obligations of the ACA) even though this would then allow their employees to obtain insurance through the new health exchanges. Insurance plans available through the exchanges all provide complete contraceptive coverage in accordance with the ACA.

But should for-profit businesses be exempt from the Affordable Care Act’s contraception mandate? Do these companies have the same rights of religious freedom as individuals under the Religious Freedom Restoration Act?

I believe it would be wrong for the Supreme Court to grant Hobby Lobby’s request for an exemption. A private for-profit company, even one with religiously devout owners, should not dictate which legal, available, medical treatments an employee may receive by contradicting a federal law that represents a national decision – though not a consensus. While the Supreme Court has allowed exemptions to the contraceptive mandate of the ACA, they are few and highly specific, such as church employers. Even religiously-owned health care institutions (such as Catholic hospitals) have not been granted this exemption.

To grant such an exemption would represent unjust discrimination against a group of employees based on morally irrelevant factors such as youth, gender, and reproductive capability. The ACA clearly stipulates particular health care services must be provided. So it is not for a group of individuals (such as the family that owns Hobby Lobby), by way of a for-profit nationwide corporate employer, to deny its employees those services.

It is also not for the Supreme Court to damage the integrity of the ACA by granting such exemptions.

The owners of Hobby Lobby are free to make business decisions in accordance with their faith (such as closing on Sundays). But they are not free to impose their beliefs on their employees by seeking to control their personal health care choices.

Hobby Lobby has a viable option for avoiding involvement with contraceptive choices: by getting out of the health insurance business. Hobby Lobby could drop its employee insurance coverage altogether and pay the modest $2,000 per person yearly tax incurred by doing so. Employees could then obtain their own insurance through the exchanges. Hobby Lobby’s attorney points out this would cost the corporation the current tax breaks it receives from providing insurance and might also force the company to pay higher wages to attract employees willing to buy their own insurance. These statements may be true, but they are also irrelevant.

In a pluralistic society, we tolerate a variety of beliefs without allowing persons to impose those beliefs on others. If the Supreme Court agrees with Hobby Lobby, why would other for-profit corporations not follow suit with other objections? What would prevent corporations from declining coverage for other services based on “religious objections”? What if corporations want exemptions from covering HIV treatment based on religious objections to homosexuality or exemptions from treating Trichinosis on the basis that it is immoral to eat pork?

No corporation should make health care decisions for its employees. Hobby Lobby should abide by the provisions of the ACA, or get out of the way of its employees by paying the “penalty” tax, increasing wages if it must, and allowing employees to select their own plans from the insurance exchanges.

[The contents of this blog are solely the responsibility of the author and do not represent the views of the Bioethics Program or Union Graduate College.]

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.]

Opening the Black Box

by Sean Philpott, Director of the Center for Bioethics and Clinical Leadership

In a study published earlier this week, researchers found that pregnant women who take acetaminophen — a widely used drug found in such over-the-counter painkillers as Tylenol and Excedrin — are at increased risk of having children with hyperkinetic disorders like ADHD (attention deficit hyperactivity disorder).

Although the results of the study are not conclusive, children whose mothers used acetaminophen frequently while pregnant were nearly twice as likely to be diagnosed with ADHD by the time they were 7 years old.

This finding is surprising and troubling. Unlike other painkillers like aspirin and ibuprofen, acetaminophen has largely been considered safe for use during pregnancy. Nearly 50% of women in the United States take this drug at some point during pregnancy.

Pregnant women now face a difficult decision: whether or not to use a drug like acetaminophen when clinically indicated, despite the potential risks to the child. But this is not the first time that women have been faced with this choice. For example, antidepressant use during pregnancy raises a number of concerns, including the possibility of certain congenital defects. But stopping their use is also risky, particularly for the mental and physical wellbeing of the mother.

In an ideal world, pregnant women and their doctors would rely on objective information about the safety of drugs and the risks of forgoing treatment to make appropriate decisions. However, the truth is that we have almost no such data. Physicians and their patients are flying blind when it comes to the use of various medications during pregnancy. Moreover, the US Food and Drug Administration (FDA) — the federal agency tasked with ensuring the safety and effectiveness of drugs sold in the US — can do little to help.

Currently, the FDA classifies drugs according to possibility that they may birth defects if used during pregnancy. Drugs are sorted into one of five categories – A, B, C, D and X – based on the amount of animal and human safety data available.

Category A drugs are those that are safe for use during pregnancy, based on extensive animal and human testing. Category X drugs are those where there is conclusive animal and human data demonstrating fetal risk. Only a handful of drugs fall into category A. Far more drugs fall in category X.

The vast majority of drugs fall into categories B, C and D. For these compounds there may or may not be data from animal models or human studies to suggest that the drug is safe. Use of these drugs by pregnant women is essentially a crapshoot; women and their physicians have little guidance to help them weigh the risks and benefits of these treatments.

The problem is that there is a bit of a Catch-22 with respect to prescription drug use and pregnant women. We would like to collect data on the safety and effectiveness of new drugs during pregnancy, but these women are typically excluded from clinical trials.

For decades, regulatory agencies like the FDA have recommended that pregnant women be excluded from clinical trials out of fear that experimental drugs may pose a risk to the developing fetus. The images of severely deformed children following the thalidomide scandal of the late 1950s and early 1960s still resonate strongly among regulators and researchers alike.

Under existing guidelines, studies in pregnant women can be considered only when drug safety and efficacy has been demonstrated in the general population, when the drug has potentially significant therapeutic benefit to pregnant women, and when drug exposure not expected to pose undue risk to the woman or fetus. Those are very difficult requirements to meet, and there is little incentive for pharmaceutical companies to conduct additional studies in pregnant women once a drug has been approved for general use.

The vast majority of the data on the safety and effectiveness of drugs during pregnancy thus comes from two sources: pregnancy exposure registries in which women who use drugs are monitored for the effect of these compounds on fetal development, and retrospective studies like the acetaminophen trial.

Unfortunately, data from pregnancy exposure registries is biased. Physicians are more likely to report adverse birth outcomes than they are to report healthy deliveries, raising concerns about the safety of drugs during pregnancy where issues don’t really exist. These registries are also largely ineffectual in identifying problems that arise later in life, such as ADHD. Retrospective studies like the acetaminophen trial have similar problems, including the difficulty of proving a direct link between drug exposure and health issues in children.

It doesn’t make sense that we rely on such “natural experiments” rather than collect the necessary safety and effectiveness data by conducting controlled clinical trials using informed and willing participants. It’s time for us the reconsider existing guidelines on the inclusion of pregnant women in clinical trials: the mothers and their children deserve better.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on February 27, 2014. It is also available on the WAMC website. Its contents are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

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.

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.

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 Munoz Tragedy: A First Step in the Right Direction

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 Alexander M. Capron
University Professor and Scott H. Bice Chair in Healthcare Law, Policy and Ethics, University of Southern California

On November 26, 2013, Erick Munoz of Haltom City, Texas, found his wife Marlise unconscious on the floor of their kitchen; she had apparently suffered a pulmonary embolism. Mr. Munoz, a paramedic, succeeded in resuscitating his wife, who was rushed by ambulance to John Peter Smith (JPS) Hospital in nearby Fort Worth. Two days later, physicians concluded that Ms. Munoz met the criteria to be determined dead on neurological grounds.  Mr. Munoz requested that the medical interventions that had been used in the attempt to save his wife’s life be withdrawn, but the hospital refused on the ground that the Texas Advanced Directives Act (TADA) forbids the withdrawal of “life-sustaining treatment” when the patient is pregnant, and Ms. Munoz was carrying a fetus of 14 weeks gestation.

Mr. Munoz—along with Marlise’s parents, who supported his decision—pleaded with the hospital for more than a month, to no avail.  Finally, on January 14, 2014, his attorneys filed a petition asking the district court in Tarrant County to declare that the TADA does not apply to dead bodies or, if it does so apply, to rule that the statute’s prohibition on ceasing treatment during pregnancy constitutes an unconstitutional deprivation of equal protection or denial of privacy rights.  Ten days later, Presiding Judge R.H. Wallace ruled that the statute does not apply to Marlise Munoz and ordered the hospital to pronounce her dead and “remove the ventilator and all other ‘life-sustaining’ treatment” from her body no later than 5:00 pm on January 27^th.

As an ethical matter, this is certainly a good outcome. It must have been painful not only for Ms. Munoz’s loved ones but for many of the healthcare professionals who continued to apply medical interventions against her wishes and past the point when they could provide any benefit for her. Now, the family can be allowed to grieve over and to bury her body, and to turn their attention to the needs of the Munoz’s young son, who has been cared for by his grandparents while his father was absorbed with the tragedy at JPS Hospital.