Constitutional Law, Justice, Politics, Science

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”

  2. Hey OS…. GREAT to see you.!!

    I just wrote a comment much like yours, though with my usual flare… 🙂

    Though, I must admit, you put it much better than I did.

    I still hope to find my comment though….

  5. RWL,
    I don’t think you are getting the message. By this time, rigor mortis has set in the limbs because it is impossible to maintain circulation in the extremities. The tissue is breaking down, and in places will begin to liquify. By now the brain will have almost completely liquified. As the tissue breaks down, the breakdown is being caused by bacteria which gives off gaseous material called cadaverine (pentamethylenediamine) and putrescine (tetramethylenediamine). The stench must be horrendous. Caderverine is a toxic diamine, made up of two amino acids.

    Extraordinary sanitary precautions are necessary, because the area in which this dead woman is decaying is septic.

    You want your child (or anyone else’s) to be incubated in those conditions, on the off chance (odds being close to zero) it might live? I think you have the wrong person identified as immature.

    1. OS,

      Please don’t join the ranks of the ‘less smart individuals.’ We, including me and you, are only speculating about what happen in this case. We don’t have the medical reports of the wife and fetus, and we definitely don’t have the autopsy reports.

      Therefore, please feel free to continue to speculate…….

  6. That document doesn’t go into yet more gruesome details of the decomposition of a brain dead body on life support for that long. Those were the lessor facts.

  8. JAG,

    When you grow up and become more mature, then we can have a discussion. Until then, as my 20 year old daughter says to her co-workers, ‘STAY OUT OF GROWN FOLKS CONVERSATION.’

  10. According to the medical records we have been provided, the fetus is distinctly abnormal,’ the attorneys said. ‘Even at this early stage, the lower extremities are deformed to the extent that the gender cannot be determined.’
    The attorneys said the fetus also has fluid building up inside the skull and possibly has a heart problem.

    Taken from Daily Mail UK….

  11. RWL,

    REALLY???? Are you that freaking DAFT????

    It is the USA… NOT sub saharan Africa…
    NOT Viable…. means just that…. NOT VIABLE….. NO amount of medical intervention will save that fetus/ baby…..

    I am a mother… and LOVE my child and would die for my child….
    What I would NOT want, is for my DEAD BODY to become an incubator
    for my child…. That is so beyond Grossly OBSCENE….

    If I would have died when pregnant, I would NOT want for my body to be
    kept alive in this manner to deliver my baby….
    I’m sorry… Can you imagine what that child will think when they find this out later????
    “Oh by the way… you lived in your mothers dead body for a few months….”

    Some people are just beyond stupid… It is selfish in ways I can not comprehend….
    This case is so disgusting and crossed the lines of ethical and MORAL
    a few months back….

    If you think gestating your unborn child in your DEAD WIFES BODY is
    LOVE…. you are one sick man…..
    That is not love for your unborn child or wife…. that is just selfish beyond comprehension….

    It seems that only the whacked in the head Religious FANATICS find this
    an acceptable way to treat a human corps…. Ghoulish is the word for it…

    This poor man has been through ENOUGH….. and I hope he sues the crap out of them…..

    Had they just honored his wishes when his wife died…. he would NOT have a law suit…. So, I don’t think that he is doing this for money….
    he just wants his wife and child to die in PEACE…..

  12. Not viable means that when the child is born it has no chance of living. It could be not viable because of it’s gestational age or it could be not viable due to extensive deformities, it wasn’t made clear. Some fetuses at 22 weeks can survive, but this fetus being does not appear to have that chance because of it’s condition. How long should this dead woman carry this baby, especially in light of the family’s wishes and the poor condition of the fetus? Can a state government usurp the next of kin’s wishes in the disposition of their loved one because of a state sanctioned right to life ideology? The family has the right to make decisions as the dead woman’s surrogate, the state took away that right. The court gave it back. The right to life movement hasn’t done themselves any favors here. People who were on the fence about abortion may very well have been awakened to the reality that should they ever be in the same situation, they may want the choice to be theirs, not the state’s. This was a huge overreach by a state government, one that prided itself in it’s principle of limited government.

    1. Annie: “Not viable means that when the child is born it has no chance of living. It could be not viable because of it’s gestational age or it could be not viable due to extensive deformities, it wasn’t made clear. Some fetuses at 22 weeks can survive, but this fetus being does not appear to have that chance because of it’s condition.”

      You are assuming too much. We don’t know the condition of the fetus. We only know what legal representatives from both sides have informed us. Noone, from either side, has a medical professional taking questions (from the public) on the status of the fetus. Don’t you find it pretty odd that the husband and family & the hospital never has told us when fetus became ‘not viable’? Did the fetus become ‘not viable’ 1 day before a motion was filed in court? Or did the fetus become ‘not viable’ the day of the wife’s stroke or during the whole process of the wife being on life support?

      As Mike A has pointed out before, we don’t know what medical malpractice has (or if) been perpetrated or alleged.

      If it was my wife, I would do my best to try and save the fetus (my child), when it becomes apparent that there is no chance to save my wife. How many times has the husband made this announcement via the news? He hasn’t. When did he make an announcement, delineating his hope that the fetus would make it, if his wife didn’t? He hasn’t. However, he wants to make an announcement that the fetus to RIP with his wife? I beginning to wonder how much money that he has the potential to receive if both mom and fetus (combined) are pronounced dead.

      On the term viability (or not viable):

      http://en.wikipedia.org/wiki/Fetal_viability

      ‘Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. As a consequence, there is, at the present time, no worldwide, uniform gestational age that defines viability.'[3]

      ‘There is no sharp limit of development, age, or weight at which a human fetus automatically becomes viable.’

      Think about this definition of ‘viability’ in terms of our health insurance industry, medical malpractice lawsuits, and political correctness (abortion rights): the fetus was dead long before mom even had the stroke.

    1. Leejcaroll,

      Your article doesn’t even tell us about the status of fetus (i.e. if the fetus is still alive). As I stated earlier, there still has not been anyone, from the medical community, from either side, giving us (general public) info about whether or not the fetus is alive.

      ‘Not viable’ could be anything, including being born with severe developmental disorders (there are childern born into this world with severe developmental disorders; do we want to murder them, too?).

      It still amazes me that neither side wants to tell us (general public) if the fetus is still alive………..

  15. Anyone want to make bets on where the hospital will send the bill? By now, this fiasco has cost hundreds of thousands of dollars. I would not be surprised to learn the cost has run into seven figures.

    If this woman had insurance of any kind, I am confident they will refuse to pay on the grounds the treatments beyond the initial lifesaving efforts were medically unnecessary. As they should. The cost should be taxed directly to those lawmakers who thought this legislation was a good idea and voted for it. And turn them over to collections if they don’t pony up. That won’t happen, of course, but one can have a fantasy.

    One other sad part of this case is the fact it drained medical staff and hospital resources away from people who might actually be helped. Staff that are already overworked and underpaid for what they do.

  16. http://www.nytimes.com/2014/01/25/us/judge-orders-hospital-to-remove-life-support-from-pregnant-woman.html?smid=pl-share&_r=0

    This resulted in an unborn baby that is significantly abnormal in development due to the massive amount intervention in keeping it’s “incubator” on life support. Disgusting. This poor family went through hell because of a state that wanted to impose their religious beliefs on the citizens of the state of Texas. This could’ve ended when this fetus was 14 weeks in gestational age, now it’s probably over 20 weeks. Shame on Texas and this hospital.

    Deliberate misinterpretation of the clause for pregnant patients under Advanced Directives. The people who helped write the law have stated it was not meant to be applied to the dead. The dead are corpses, not patients. The family’s right to be the surrogate voice for this woman was taken away by government. How is that for small government?

    Social conservatives will embrace big government when it comes to imposing their religious beliefs on to the rest of us. I hope it’s clearer now that if they had their way they would be forcing women to carry and give birth, even after death.

    1. Dredd et All:

      I read your link. Do you find it kinda strange that not a single health professional (doctor or at least a nurse practicioner), from both sides, has publicly came forward to explain the status of the fetus? There has to be a potential lawsuit, requiring both mom (rip) and fetus to be dead in order for them (husband and family) to proceed to file a lawsuit against the hospital, state of texas, and/or their own insurance company??

      I waiting for a news conference, by the hospital & staff, describing the status of the fetus (we will never know the ture and/or complete status of the fetus due to HIPAA, or until probably its’ autopsy).

  18. annieofwi:

    I heard that report this morning on NPR. I am certain that medical professionals are not surprised. But then, to whom should we entrust women’s health? Who knows better about such matters than your local pastor?

  20. visitor:

    1. Under Roe v. Wade, and despite the efforts of the Texas legislature to overrule that decision, the fetus had no standing when Mrs. Munoz became clinically dead. Therefore, the decision lawfully belonged solely to the family.

    2. I don’t know what “grave deformities” means, but a fetus can have a whole host of abnormalities and still be viable. And if a fetus is viable, should it be entitled to legal representation in the decision-making process?

    3. The Texas statute as applied in this instance violates a fundamental principle of morality: every person ought to be treated as an end in himself, rather than as a means to accomplish some other purpose. If one urges in response that Mrs. Munoz is dead and is therefore not a moral actor, then under what theory does Texas assert a right to exercise any control over the body of a deceased person beyond prescribing acceptable methods for disposition of the remains?

    4. Your response begs the question, but in doing so illustrates the core barrier to any intelligent discussion of abortion. Opponents of the right to abortion assume without argument that a fetus at any stage of development is a human being. However, there is not and has never been a consensus on that question. The issue here is not when “life” begins. That is a biological question. The issue is at what stage of development should we classify a fetus as a “person” within the meaning of the Constitution. The Supreme Court expressly declined to address that issue in Roe v. Wade, although its language suggests that viability is a rational point for recognition, and it remains a matter of debate. Until we resolve that issue, we will never be able to adopt a coherent abortion policy.

    1. Many people’s lives could be saved if, once a person dies, we could scavenge his or her usable body parts. Does that sound like a good idea to everyone?

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