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. Hello JAG, nice to meet ya! And the feelings are mutual. It’s great to see more women commenting on this thread.

  4. Hi Darren,

    Hi Leejcarrol…. Hey Swarthmoremom…..

    It is great to see you as well… I have missed you all…..

    I am will heavy heart over NAL… It is just so sad after losing Idealist…
    he was a LOVELY man… I will miss him greatly….

  5. It is purely political. Perry and his tea party cohorts enacted all these anti-chioce laws, and they want them enforced. The laws are now on the books in other states, too, but Texas’s law is among the strictest. The election of the tea party governors and state legislators in 2010 has impacted women’s healthcare very negatively. The tea party candidate in Virginia was defeated in 2013. Hopefully, more will be in 2014 and that includes Texas tea partier, Greg Abbott.

  6. RWL, medical records are supposed to be confidential. Forget HIPPA. This woman’s condition is none of any of our business. Do you want records of your medical history/condition released to the public. How did your last prostate exam go? Maybe we can all sit and speculate on what you say about it yourself?

  7. RWL,
    You may not realize it, but your argument broke down at the very beginning when you stated what YOUR wishes would be if you found yourself in similar circumstances. In the present instance, the husband–and father of the fetus–wanted life support turned off. According to reports, she had expressed her wishes in writing to be DNR rather than to be in a persistent vegetative state, He and the rest of her family had agreed.

    It was busybody types in the state legislature, fueled by right wing religious zealotry, that interfered with, and blocked, what should be a private decision between the dead woman and her family. Then they want to decry “government interference” with their personal lives on the campaign stump. Hypocrisy on parade.

  9. Texas pregnant woman Marlise Munoz hospital ordered to stop life support
    http://abclocal.go.com/wls/story?section=news/national_world&id=9407088

    Excerpt:
    AP
    January 25, 2014 (FORT WORTH, Texas) — For two months, Erick Munoz has sat inside a North Texas hospital room next to his pregnant, brain-dead wife, with what would be their second child together growing inside her.

    Now a judge has ruled that the hospital must follow Munoz’s wishes and disconnect Marlise Munoz from life support that it’s refused to remove in hopes of saving the fetus inside her.

    The judge’s ruling Friday could give Erick Munoz a long-awaited chance to bury his wife and move forward to care for their son and his relatives. It would also mean the fetus would never be born.

  11. I am confident the case is successfully made this woman and her fetus are not going to make it. Ample supporting evidence by medical professionals quoted in various articles and statements by those having much experience and having reviewed these articles it is clear enough to conclude there is no benefit in keeping this poor woman on life support measures. The standard for the courts has never been one of complete certainty in order to make a judgement. Depending on the nature of the legal matter, it is either a preponderance of the evidence, clear cogent and convincing evidence, or proof beyond a reasonable doubt; all of which have been satisfied. We are a nation of laws, that is what is involved in this decision.

  12. She is not in a coma, nor a persistent vegetative state…. she is brain dead….
    NO, brain function, and without her brain to tell her heart to pump, it can’t pump, so a machine is doing this for her… Though, it is still not the same as
    if she were alive….

  13. RWL,
    My family has been in the funeral business for well over a century. I have picked up dead bodies in all states of decomposition to take them to the morgue. I have also been on the staff of a half-dozen hospitals, including the Medical Ethics committee.

    Burns and floaters are the worst. As for speculation, I am not at this particular person’s bedside, but have watched people die and have seen the aftermath since I was a kid. My “speculation” is a bit more than just guessing. Spending thirteen years of my life sitting in college classrooms and labs, I think I learned just a few things about the process of decomposition, both theory and first hand observation. I never took the formal course and of course was never licensed, but by the time I was out of high school, I knew how to embalm a body and lost track of the number of autopsies I have seen. When I made those comments, I was not guessing or speculating. Sometimes reality is ugly. Doesn’t make it less true, it is just ugly.

    And oh yes. Regarding that decomposition thing. Been there and done that. When I got part of my foot partly amputated in an accident and they reattached it, interstitial circulation never “took,” and that part of my foot died. Gangrene set in. Once you smell gangrene, you will never forget it….especially when it is your own body rotting.

    1. OS,

      I respect your work experience and educational background, but not more than your personal experience (i.e. your ‘foot incident’). With that, you have my upmost respect (especially being able to release this info to the public).

      Nevertheless, until you and I (and everyone else) has an authentic copies of the medical records and autopsy reports of both mom/wife and fetus, then anything that we ‘hypothesize’, regarding this case, is pure ‘postulation’ (or an educated guess: does that sound better?).

  17. JAG,
    No one knows the algorithm Askimet uses to trigger the filter. Every blog has this problem. It is frustrating to be able to see the comment that needs rescuing and not be able to get it out of the clutches of Askimet. Try again.

  19. Thank you OS, I will try this….

    Though, I just tried posting a snippet of my comment and it is also not posting..
    It was short and not sure what formatting I have to do or NOT do in this case… :-\

  20. JAG,
    I can see your comments in the spam filter, but with the new settings I can’t retrieve them for you. That function is now disabled in the new format. I notice they are kind of long with some formatting, which is one of the characteristics of spam. Suggest you write shorter comments and be careful about the formatting. Sometimes it is impossible to tell what triggers the spam filter. Try again by breaking it up into two or three shorter comments.

    And oh yes, HI back to you too.

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