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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