Pregnancy and the Undead

By Mike Appleton, Weekend Blogger

In 1882 a man named John Kirchbaum submitted a patent application for a device which, when properly attached to a coffin, permitted the presumed deceased person to communicate to those on the surface that the burial had been premature. That someone would consider the erroneous pronouncement of death sufficiently common to support a market for such products strikes one as peculiar today, but the fear of possibly being buried alive was genuine in the 18th and 19th centuries. Until quite recently, after all, a determination of death was made solely by observation. Was the subject breathing? Did he have a heart beat? Under the common law, death was in fact defined as the irreversible cessation of circulatory and respiratory functions.

But in the 20th century two revolutions in medical technology changed attitudes and definitions. The first was the invention of the mechanical ventilator, originally intended to help patients breathe during surgery. The second was the development of anti-rejection drugs and their impact on the science of organ transplantation. The medical community quickly came to realize that continuing to provide oxygen to a deceased person greatly improved the viability of organs needed for transplant purposes. These advances created an obvious ethical and legal dilemma. A living person may agree to donate a kidney to save another’s life because we have two of them. However, other vital organs may only be removed upon the donor’s death. And if respiration is maintained to preserve organs after the donor has “died,” what has happened to our traditional definition of death? How can a person be deemed deceased if his or her breathing is being mechanically maintained?

The answer to the dilemma was the concept of “brain death,” the irreversible cessation of all functions of the entire brain. In 1968 a study committee at the Harvard Medical School created a set of guidelines indicative of what was termed “irreversible coma”: the persistence over a period of 24 hours of a set of conditions including absence of spontaneous breathing or movement, fixed and dilated pupils, unresponsiveness and the absence of reflexes. Twelve years later the National Conference of Commissioners of Uniform State Laws proposed the Uniform Determination of Death Act, which defines death as either “(1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem.”

The Uniform Determination of Death Act was approved by the AMA in the fall of 1980 and by the ABA early the following year. Since then it has been adopted by 37 states and the District of Columbia. Of the remaining states that have not formally adopted the UDDA, most have incorporated its definition of brain death into their statutes. It is clearly the prevailing law on the issue in this country.

And that brings us to the case of Marlise Munoz.

In November of last year, Mrs. Munoz was discovered lying unconscious on her kitchen floor. She was rushed to the John Peter Smith Hospital in Fort Worth, where doctors were unable to revive her. She was placed on a ventilator and tests confirmed that she has no brain function. Although a pulmonary embolism is suspected, the precise cause of her condition is not yet known. Under Section 671.001 of the Texas Statutes, a person is dead when “there is irreversible cessation of the person’s spontaneous respiratory and circulatory functions.” When those functions are being mechanically maintained, death is determined by whether “there is irreversible cessation of all spontaneous brain function.”

According to her husband and her parents, Mrs. Munoz had discussed end-of-life issues with her family and it was her wish that she not be connected to life-support equipment if her condition were irreversible. The family has requested the hospital to disconnect the equipment, and the hospital has refused. Why? Because Mrs. Munoz was 14 weeks pregnant at the time of her hospital admission, and the Texas statutes governing advance care directives contains Section 166.049, which provides that “A person may not withdraw or withhold life-sustaining treatment under this sub-chapter from a pregnant patient.” In essence, the hospital is keeping Mrs. Munoz on life-support although she is clinically deceased and over the objections of her family in order to comply with one of Texas’ anti-abortion laws.

The Munoz case raises troubling questions of both logic and constitutionality. Thomas W. Mayo, a bioethicist at the Southern Methodist University School of Law, succinctly addressed the logic issue. “If she is dead,” he said, “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.” Dr. Robert Fine, clinical director of the office of clinical ethics with the Baylor Health Care System, agrees. “This patient is neither terminably nor irreversibly ill.  Under Texas law, this patient is legally dead.” That reasoning is apparently unconvincing to hospital officials. “Every day, we have patients and families who must make difficult decisions,” responds Jill Labbe, a hospital spokesperson. “Our position remains the same. We follow the law.”

Regardless of the hospital’s position, the statute is clearly unconstitutional, at least as applied to this case. Under the decision in Roe v. Wade, 410 U.S. 113 (1973), the state may not impose severe restrictions on a woman’s right to terminate a pregnancy prior to fetal viability. The Texas statute contains no limitations on its applicability. The Texas Alliance for Life, however, as well as other abortion opponents, argue that life-support should be continued for a pregnant woman, even if she is legally dead, effectively turning a corpse into an undead incubator. That rationale, of course, would support a statute mandating life-support for any individual possessing usable organs pending their harvesting.

The Munoz family filed suit last week in the Tarrant County court challenging the hospital’s decision. It is of no consolation to the Munoz family, but perhaps the courts will issue a decision that prevents this shameful episode from being repeated.

131 thoughts on “Pregnancy and the Undead

  1. OS,

    As of January 26, 2014, (and according to Mike A’s article) there is no legal, binding document expressing the wishes of the wife regarding death and life decisions (maybe a life insurance policy: the reason why the husband wants this over with so quickly?). So, your statement, beginning with ‘According to reports…..’ is meaningless. My argument or point of view/speculation still stands.

    Leejcaroll,

    Please feel free to join the ranks of the ‘ignoramus(es)’. Anyone with at least a BA knows that I wasn’t asking to view this woman/wife/mom’s and fetus’ medical and/or autopsy reports.

    Please feel free to scroll back up, and review the notes to comprehend what I said: how we are all speculating about this case, including the woman and fetus’ body and the husband’s desires, without their medical and/or autopsy reports OR the few questions and concerns that I (and a few other bloggers) have mentioned about the husband and how much money-via medical malpractice, life insurance, etc.-is involved (which could be very interesting to this case).

    I also stated that most of the bloggers assertions are pure speculation (I upgraded OS’s assertions of speculation to postulation-fancy term for educated guess); however, some of our bloggers are assuming that their assertions are not speculation, even though (and here’s the point) they haven’t SEEN THE MED & AUT REPORTS,; OUR BLOGGERS DON’T KNOW IF THERE IS A MEDICAL MALPRACTICE SUIT UNDERWAY; THEY DON’T KNOW IF OR HOW MUCH LIFE INSURANCE POLICY IS INVOLVED; AND OUR BLOGGERS CONTINUE TO SPECULATE EVEN THOUGH THERE IS NO LEGAL DOCUMENT EXPRESSING MOM/WIFE’S DEATH OR LIFE WISHES FOR THIS SCENARIO.

    But don’t mind me, feel free to continue to speculate…….

    • RWL, I have a B.A. from a well respected university but you don’t need to go to college to know how to respond civilly to people. You talked about the speculation, we don’t have the notes, etc. Yes, because there is a thing called HIPPA so no one outside of the family doctors, hospital, and lawyers have or should have access to them. he only way this discussion can go forward is by speculation. But go ahead speculate all you want as to who someone is, what their background is, and what civility looks like.

  2. When discussing an article or case that is ongoing, the ONLY thing we can do is go by what is being said in the press.
    Of course we don’t know the HARD FACTS, this is true with any and EVERY article… If we were to only comment on cases and articles where we have the HARD facts, we would NEVER discuss any article or case.
    Comment sections would be rendered useless.

    As is stated in MANY articles, this man’s wife is NOT in a coma,
    she is DEAD. She is not going to recover from being dead she was DEAD when they put her on the respirator…. so I can understand why he would want this to end.

    He is grieving for his wife and unborn child, and his grieving is being made worse by this whole
    science experiment gone horribly wrong. This man deserves to start the grieving process that has been put on hold, and be able to say good bye to his wife, the way he should have been able to 2 months ago.

    This has been on going for 2 months now…. he has a young child to care for,
    and a job he must go to day after day to provide for his son.
    This is not hurrying things along.
    Making a widow wait 2 months to grieve is CRUEL!!!
    This should NEVER had happened.

  3. I forgot to add: Here’s one more crucial fact (and I am surprise that OS and Mike A-in his article-didn’t mention this): THEY STILL DO NOT KNOW THE CAUSE OF DEATH OF THE WIFE/MOM. THEY WON’T KNOW, WITH 99.99999% ACCURACY, UNTIL AN AUTOPSY IS PERFORM.

    In other words, did the stroke kill the woman or did the hospital? Or both? or Neither?

  4. 2 of the authors of the Texas legislation also commented on this..
    They have both said the hospital was not following the law, as she was NO LONGER a patient once she was dead.
    she is legally dead…..

    also the parents of this poor woman are also wanting this to end.
    Do you think they are happy for their daughter to be dead???
    Do you suspect that they also have a life insurance policy????
    That is just uncalled for. This man has suffered enough.
    Assuming this man wants his wife dead so he can collect life insurance is
    just so cold and cruel…

    Had this happened in any other state, this man would have been able to bury
    his wife after she died on Nov. 28th… Instead because of ill guided people who have an agenda along with some reading comprehension issues, this has turned into something so sad and disgusting, and beyond anything I could have thought possible.

    This man did not kill his wife. Her parents did not kill her, she died of natural causes 2 months ago.
    She is NOT on life support. she has been on DEATH support.
    and this is not what these machines were intended for.

  5. By the way…. maybe most young people do not have the end of life conversation with their spouse… However, both Marlise Munoz and her husband were paramedics…. This is a conversation that MOST people who are in this line of work do have.

    The husband and the parents all knew that HER WISHES were that she not be kept on a respirator…..

    This man knew what his wife wanted… and her parents knew what she wanted…. She most likely did not have a living will/ advance directive because she was so young and didn’t think she would die in this manner.

    Heck, I am 47, and I don’t have one, Though, I have made it VERY clear to my family members, that I do not wish to be put on a ventilator should something like this happen.

  6. Erick Munoz described visiting his wife in the hospital, saying her eyes were now glassy and the smell of her perfume had given way to a smell he knew to be of a dead body. His attorneys told Wallace on Friday that doctors had performed medical care on her body over his protests

  7. Attorneys: Fetus of pregnant, brain-dead wife is ‘distinctly abnormal’
    By Dana Ford, CNN
    Thu January 23, 2014
    http://www.cnn.com/2014/01/22/us/pregnant-life-support-texas/index.html

    Excerpt:
    (CNN) — Attorneys representing the family of Marlise Munoz — a pregnant Texas woman they say is brain dead — revealed Wednesday that the “fetus is distinctly abnormal.”

    “Even at this early stage, the lower extremities are deformed to the extent that the gender cannot be determined. The fetus suffers from hydrocephalus. It also appears that there are further abnormalities, including a possible heart problem, that cannot be specifically determined due to the immobile nature of Mrs. Munoz’s deceased body.

    “Quite sadly, this information is not surprising due to the fact that the fetus, after being deprived of oxygen for an indeterminate length of time, is gestating within a dead and deteriorating body, as a horrified family looks on in absolute anguish, distress and sadness,” attorneys Jessica Janicek and Heather King said in a statement.

  8. To put it bluntly. How much more decomposition and necrosis will be required before outsiders leave this woman’s corpse alone? As insensitive as this question might seem that is what the situation has become. And justagirlinseattle has it right. “Death support” and the husband’s last memory of the huspand’s beloved wife being the smell of decay.

    I hope the hospital is satisfied.

  9. If nothing else is learned from this case, it is that every person should have a living will and durable power of attorney in place. An airtight one that will cross state lines, if necessary. Most of these documents are state specific by referencing a specific statue, but it should be possible, legally, to create one that will be accepted anywhere.

    Want to go the extra mile. Video yourself reading your living will and durable power of attorney. Your own voice and own words will have a psychological effect on any trier of fact should it be contested.

  10. RWL,

    I does not matter one whit what the cause of death was. She could have had a stroke, a heart attack, or any number of things. Cause is not the issue. The issue here is that when a person has zero brain activity, their pupils are blown, no respiration , no heart activity without outside stimulation, and no pain reflex, they are dead. Dead as if they had been shot through the heart, electrocuted or blown up by an IED. Dead is dead.

    JAG and Annie have it right.

  11. I could not agree more OS, I have seen too many families wracked in emotion
    decide that even though their loved ones wishes were DNR, The family just could NOT let go…..

    and exactly right OS… It doesn’t matter how she died… she was dead when she got to the hospital…. and she was most certainly dead 2 days later.. on Nov. 28th…..

    I would assume that after being on so many drugs and such keeping her body “in a life like state”
    there is not much chance of them finding EXACTLY what the cause of death was….. NOT to mention the decomposition of the body could also make it a bit difficult….

    Darren, we are not the ones being insensitive,… It is the
    anti-choice- anti science crowd who have done the damage….

    The truth is ugly… BUT, maybe instead of watching TV shows where people
    receive CPR and walk out of the hospital a day later as if nothing happened….
    We need to start being HONEST about what it means to be brain dead in this day and age…..

  12. JAG

    I know what you are saying about the expectations created by TV and CPR. Without paramedics and proper equipment it is a last ditch effort, absolutely better than doing nothing, but not always certain.

    A couple of things I have noticed with working the road and getting dispatched to heart attack calls where the patient is unable to be saved it is often a good idea to take some form of CPR or other measures for the benefit of the family. While this might sound odd it can provide a some cushion to the family that something was done to help out their loved one and they weren’t just allowed to die. I had one call where the wife woke up to find her elderly husband unresponsive. When I arrived it was obvious he had been dead for some time and was not revivable. But she was distressed and kept telling me to help him as she led me into the bedroom. I did CPR on him for only one reason, to give her a small measure of of consolation that we cared about her husband and everything was done to save him. And, it wasn’t the only time I had to do this.

    Another practice I held to was if a heart attack call was at a residence and the paramedics arrived we asked the family to clear out of the room because they meant well but tended to get in the way. If the paramedics pronounced the patient dead I would then walk out to the family and inform them what happened. After I had talked with them and it became time to remove the deceased to the ambulance I would tell the family something to the effect of “We are going to bring him out in three minutes, if you have family business to discuss in private I understand.” This allowed for the family to choose how to address their deceased loved one being taken out. It told them when the body was going to be wheeled out if they wanted to watch and if they did not want to watch, which was usually the case, it provided them with a “face saving” way to remove themselves to another room and not have to witness this under the auspices of discussing family business. And it removes the guilt or perceived expectation that they must be present to prove to others they care.

    Sometimes, as these hospital administrators and certainly those wanting to use this incident for political gain become more removed from thinking about the emotion and concerns of the family they can be quite calloused in putting policy above people’s emotional needs.

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