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.