The wishes of the patient and family versus fetal rights

Numerous strategies by antiabortion groups to curb women’s constitutional right to abortion are frequently reported in the news, and come as no surprise. However, a recent development illustrates novel circumstances in which people are using legal maneuvers to conspire to restrict medical decisions by patients and their families even when the right to abortion is not at issue.

On January 8, 2014, a front-page story in the New York Times reported the case of Marlise Munoz, a pregnant, brain-dead woman in Texas who was being kept on life support. Despite the patient’s stated wish — according to her parents — “not to be left on life support,” the Texas hospital invoked a state law that prohibits doctors from removing life support from pregnant patients. In contrast to other cases in which family members of patients on life support have insisted on continuation of medical treatment despite the futility of such treatment, in the present case the parents and husband of the brain-dead patient have been seeking removal of life support.

This case has several peculiarities. One is that the woman is dead. “Brain-dead” means dead, despite the metaphorical use of the term in common parlance.

Like every other state in the U.S., Texas has a law on advance directives – wishes expressed by persons with decisional capacity regarding what they would want by way of medical treatment if they lose capacity and become incompetent. That law defines “life-sustaining treatment” as “treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die.”

Ms. Munoz is already dead, so it is reasonable to question whether the statute is even applicable to this case. The Texas law also contains the provision that prohibits removing life support from a pregnant patient: “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.”

Finally, in the absence of a written advance directive, the law provides for the spouse, along with the attending physician, to make a decision to withdraw treatment of an incompetent patient. However, if the attending physician “refuses to honor a patient’s advance directive or a health care or treatment decision made by or on behalf of a patient,” the case must then be reviewed by an ethics committee, followed by a series of procedural steps. In the case of Ms. Munoz, the physician told the family that the hospital would not comply with the request to remove life support based on the Texas law that prohibits removal of life support from pregnant patients.

The story in the Times quotes comments on the case from several bioethicists. Arthur L. Caplan states, “The Texas Legislature can’t require doctors to do the impossible and try to treat someone who’s dead.” This remark misconstrues the nature of the case and in my view misses the point. The doctors are not attempting to treat a dead body. They are trying to keep the fetus alive by administering life support to the dead body in which the fetus still lives. A comment in the article by Thomas W. Mayo comes closer to the heart of the issue: “If she is dead, I don’t see how she can be a patient, and I don’t see how we can be talking about treatment options for her.”

The case may ultimately be decided on legal grounds — that is, whether the Texas statute is applicable to a dead body containing a living fetus. The ethical question, however, remains: Should a patient’s advance directives and her family’s decisions regarding removal of life support be overridden by the state’s determination to keep the fetus alive in a dead body?

The Times article points out a claim by critics of the hospital’s action that “the fetus has not reached the point of viability outside the womb and that Ms. Munoz would have a constitutional right to an abortion.” But this case is not about a right to abortion. It is about restricting the right to a medical decision by a patient and her family because the patient happens to be a pregnant woman.

Ruth Macklin is a professor, department of epidemiology and population health, Albert Einstein College of Medicine. She blogs at The Doctor’s Tablet.

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  • John C. Key MD

    “Novel circumstances” tend to arise very often, often rendering the much heralded “advance directives” to be irrelevant to the situation at hand. To me the Texas statute seems to abound in common sense–perhaps that is because I am a Texan.. If a fetus inside a dead mother can be kept alive to viability, why in the world would one not wish to do it? Why would be bereaved spouse not wish to have a living child from his dead wife? I certainly can’t comprehend that one.

    If two persons in an automobile have a crash in which only one is killed, should we not endeavor to save the other? This may be a silly example, but certainly no sillier than those who seek to have the Munoz fetus expire.

    I am a pro-life person. I don’t understand the pro-death community any more than they understand me. I fear the twain will never meet.

    • 1SB

      “Why would the bereaved spouse not wish to have a living child from his dead wife?”
      1. The “child” is several weeks away from viability. The “child” is a fetus.
      2. The “child” has most likely been horribly affected from the lack of oxygen its mother had. I believe for at least an hour.
      3. The “child” will likely be born with such tremendous medical needs that it will suck the family’s income dry if it survived and be a constant reminder of the loss of the mother.
      4. The “child’s” father and mother’s family would not and do not want to put the mother through such a horrible existence in the remote likelihood that a viable health child will be born.

      • jennyct

        Say for example, the child was viable? And I really don’t get how it’s horrible for a dead person, but not a living one.

    • SpringTexan

      Maybe YOU don’t understand why someone wouldn’t want their child born in this instance but that is a real failure of empathy on your part, however you would feel personally.

      The burden of taking care of a likely handicapped child (if the fetus doesn’t in fact die anyhow which is likely) with only one parent and the impact on other children plus the impact on both yourself and the other children of having the mother’s body gruesomely upkept like this is to many of us an absolutely nightmarish and horrible prospect, so far from being pro-nature or pro-life or anything else.

      I understand that you do not feel the same, but you are really lacking if you think everyone would naturally feel like you. Most I believe would NOT.

      Moreover, I am quite certain the hospital will be billing the unwilling father and this could make his whole family bankrupt!

    • jennyct

      I agree. When the child is not viable, then that would be a totally different story. I have more empathy for the possible life than that of an expired one. Strange, isn’t it?

    • querywoman

      Do doctors understand life and death any better than a married paramedic couple? He knows the odds and realities.
      He already has one living child who desperately needs his father.

  • KoharJones

    This is such a sad case. You do a great job of laying out the basic difficulty: “the state’s determination to keep a fetus alive in a dead body.” The non-viable fetus has become the patient, the mother’s dead body a form of life support.

    Whose rights to what are we trying to protect? Fetus right to life? Or women’s right to make medical decisions about her body, regardless of her pregnancy status?

    The ability to grow life is an amazing gift. And still women remain the same complete people with their preferences and personalities and directives before, during and after pregnancy.

    The logical conclusion of the Texas argument is that once pregnant, a woman loses her selfhood (autonomy), and becomes nothing more than a physical vessel to bring new life to the world.

    That feels demeaning to me.

  • jennyct

    There have been infants born to brain dead mothers, so it can go either way. Fortunately for this father, his hunch was correct, so they will “pull the plug.”

  • jennyct

    Technically, they have different dna, so they are separate individuals. The placenta actually prevents the blood from mixing.

    • Allie

      If you think technicalities are the answer, then, fetal blood is detectable in maternal blood, and cells in your body have different DNA due to mutations and non-disjunction but you don’t consider yourself multiple separate individuals because of it.

      The problem of abortion is no matter whether you can philosophically separate them based on DNA or placentas (and yes, your argument is philosophical not technical), in reality if you take a pre-viable fetus out of a woman’s uterus, it dies. That is what pre-viable means. My point is that, if you separate them, one of them automatically dies, that is reality. Philosophically considering them separate despite that reality is what you are appealing to. In the real world, the problem of abortion is not their philosophical separateness but the fetus’ physical dependency.

      • jennyct

        You really consider mutation or gametes to be a separate “person”? When you separate a baby infant from an adult and leave it alone, won’t it die also? What about that type of dependency?

        • Allie

          I don’t, but that is what your “technical” argument is suggesting, i.e. that we should consider any living cells (no matter whether they would die without the rest of our body) with different DNA as “separate individuals.” I’m just following your logic.

          Thankfully for every mother in the world, real babies don’t die just because they are separated from her. That’s what makes fetuses and babies different. Can you kill a child by neglect? Absolutely. Is that the same thing as not being able to physically separate a fetus from a woman without killing it? Not at all.

          • jennyct

            I am not suggesting that any living cells equate to a human fetus. Biologically speaking, a fetus is a stage of development that a human goes through (just as infancy, toddler, etc) until it is an adult. I would suspect that you do not consider a human fetus to have rights until it is an infant – due to the fact that the supreme court did not believe in personhood until it is born. Well, most mothers who want to keep their pregnancies consider fetuses to be children. Wanted pregnancies are valued and protected by the mother, so I was suggesting that perhaps the mother would want the pregnancy to continue even if she passed away. The verbal directive she gave was not given while she was pregnant or in reference to her pregnancy. It is quite possible that she would not want her pregnancy to continue if she died, but if the fetus was normal, why wouldn’t she? Most mothers would protect their children with their lives, this is not at all a stretch. Now apparently the father was concerned that the fetus would not make it based on his EMT training. I concur that if doctors agreed, than the state is making a grave mistake. But that was never my premise!

          • Allie

            So, now it is about stages of development, not DNA, ok.
            I don’t follow what the rest of your post has to do with what we were discussing from your reply to my post. I think women are able to feel many different things about their pregnancies and fetuses, and it isn’t my place to judge any of them. But it isn’t your place to judge women who don’t fit the model of “I would do anything to protect my precious pre-born baby.” I think the father knows more about his wife’s wishes than you do.

          • jennyct

            No, it is also about DNA because all cells are not human beings, only the complete collection of DNA or a set of one maternal chromosome and one paternal chromosome that make a fetus, which without intervention will mature to an adult human being. I mean you are trying to railroad, or void my salient points of the discussion by suggesting you don’t know what I mean, or what I’m talking about. No other cells will become an adult human being except those of a fetus… I know you understand this. I am not judging, I am questioning, which is a natural part of learning, and expressing my rationale. I am trying to understand what motivates some people to do one thing and others to do the exact opposite. And the father did not claim to know what her wishes were in the event of pregnancy. Legal contracts are very specific and definitive. Any variation negates that contract. Not that this is a contract, but the law treats it as a something similar. A wanted fetus adds to the complexity of the legal ramifications… because at least from one perspective, males traditionally do not have any say in his partner’s decision of pregnancy termination. Everything is not black and white and since I am willing to concede to such, is it asking too much for others to? Society is based on a set of core values… at least that’s what academics say.

          • Allie

            I don’t have a problem with stages of development, the fetus is a stage of development that is not independent from the mother. Saying it is a stage of development says nothing whether it is truly capable of being independent or not.

            It’s not that I don’t understand what you were saying, it was just not part of the discussion we were having. And you apparently misunderstood me. I said he knows her wishes better than you do, not that they had discussed every possibility that there could be. But he certainly has a better idea what her wishes would be than you do, since you’ve never met her. Husbands don’t ordinarily get to decide any medical decisions for their wives unless she is incapacitated, that’s exactly what happened in this situation.

  • jennyct

    No, but I would rather hope for a good outcome for the human fetus. And seeing someone on a hospital bed expired is the same as seeing them expired in a casket. It still hurts months later… at least it did for me when my nephew killed himself. When it becomes apparent there is no more hope then it is time to grieve.
    Ever live with a person with Alzheimer’s?

  • jennyct

    Well, 25 weeks was too soon at one time also.

    • JR

      Parents can choose to withdraw support for a child born at 25 weeks.

  • jennyct

    Well I could say the same for you about understanding because if you don’t understand how someone could give their life for a child, unborn or birthed, then you are lacking. I could understand that if he knew definitively that his wanted child was not going to make it regardless, then yes, OF COURSE! If he didn’t know, yet based his thoughts on his EMT experience, then I would say he needs to consult with the physicians to determine if there is no chance. If they say they don’t know, then how could he? If he does not want to wait because he cannot stand seeing his wife on a respirator, but he knows that the child still hasn’t got a definitive prognosis, then I would think that’s odd. I, like most mothers, would want everything possible done for my wanted pregnancy UNLESS I knew there was absolutely 0 chance of life (some minor disability would not dissuade me – I have known people with disabilities to have a higher quality of life than those without). I must ask you what you feel about people with Alzheimer’s who request resuscitation directives in their living will (not verbally, but written)?

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