Hospital keeps pregnant, brain-dead woman alive, contrary to husband’s wishes

Fascinating, and sad, story out of Texas.  A man is suing a hospital in order to force them to take his pregnant wife off of life support.

Erick Munoz found his wife Marlise unconscious in their home on November 26, 2013. She was immediately put on life support, where she remains to this day.  At the time, Marlise was 14 weeks pregnant.

The woman is brain dead, and her husband’s lawyers say that under Texas law, Marlise is legally dead.  They also say that Marlise made clear to her husband, prior to falling ill, that she would not want to have life support continued in this type of situation. The husband and her parents want the hospital to remove life support.

The hospital, on the other hand, says that they are required to continue treatment to a “pregnant patient” under Texas law. Here’s the law in question:

Sec. 166.049. PREGNANT PATIENTS. A person may not withdraw or withhold life-sustaining treatment [procedures] under this subchapter from a pregnant patient.

The husband’s lawyer respond that the law applies to living patients, not dead ones.  Interestingly, both Erick and Marlise Munoz are paramedics, so they’re not unaware of medical decision making.

Complicating things further, the condition of the fetus, according to AP, is “unclear.”

There are a number of interesting questions here:

1. Could the couple have sought an abortion under Texas law at 14 weeks of pregnancy? (More on that below.) If so, then isn’t that really what the husband has been asking for, and as the person in charge of his wife’s medical decisions, did he not have the right to request this immediately?  And the same question applies to the age of the fetus now.

2. Would the wife have wanted to terminate the pregnancy under these conditions?  It’s one thing to say that she indicated she would not like to be kept artificially alive if brain dead.  But I doubt the couple had a discussion about being brain dead and pregnant.  Let’s assume they didn’t have that discussion, for argument’s sake.  Does that change things?  Does that make her consent about being on life support less applicable to the current situation?

What’s also interesting is that under the official state of Texas DNR (do not resuscitate) advanced medical directives, the form is void if the patient is pregnant – I found a Texas DNR online, here’s what it says:

AUTOMATIC REVOCATION: An OOH-DNR Order is automatically revoked for a person known to be pregnant or in the case of unnatural or suspicious circumstances.

The Munoz’ did not have a DRN.  But this does seem to suggest that under Texas law, if you’re pregnant, you don’t get to remove life support.  But again, the husband’s legal team is arguing that the woman is dead, and that the law did not anticipate applying to dead people.  But is that really true?  Isn’t this exactly the type of situation that a DNR applies to, where someone suffers a catastrophic illness and cannot recover and/or is brain-dead?

And I found a bit more about Texas abortion law from an earlier article about this couple:

Then you have the uncertain legal standing of the fetus. On the one hand, Supreme Court precedent dictates that a woman has a constitutional right to an abortion pre-viability (Texas recently moved its threshold to 20 weeks), meaning it’s not considered a person under the law, meaning that, at 14 weeks, Munoz’ fetus wasn’t legally considered a person. On the other, Texas laws suggest otherwise, including the aforementioned advanced-directives rule and criminal statutes that treat the death of a fetus at any stage of development as murder.

The analysis seems correct.  You can’t tell a couple that under Texas law they can abort a fetus at 14 weeks, but if they try to remove life support from the mother, and thus terminate the fetus at 14 weeks, they can’t because it’s illegal to terminate a fetus at 14 weeks.  Either the family has the right to terminate the fetus at 14 weeks or they don’t.  It looks like the Texas legislature, whether intentionally or not (likely intentionally), tried to find a way to further undercut the right to choose.

And to make things even more complicated, the county-operated hospital in question is located in a conservative part of Texas, and the hospital banned abortions on its premises in 1988.  Thus raising the issue of how much leeway we should give hospitals on a myriad of issues.  As this case shows, you can’t always choose what hospital you end up in, certainly during an emergency. So when hospitals limit choices, it puts real people in danger of losing their rights.

I’m curious if the family tried to have Marlise moved to another hospital, one that’s more amenable to their wishes, and whether the current hospital could say or do anything to stop them from moving her.  It’s none of the hospital’s business why or where I move my family member, providing the family member is well enough to be moved (and it’s not like Marlise’s condition is going to get any worse – though perhaps the hospital would allege that the move would be too dangerous for the fetus).

As an aside, I’ve been unable to find any news stories explaining why the family is against keeping Marlise on life support only until the child can be born.  If it were my child, and my spouse died, I suspect I’d do everything I could to save the child/fetus.  One story did mention that while the doctors found a heartbeat for the fetus, they don’t know how long it might have gone without oxygen while the mother was unconscious.  So perhaps the family is concerned that the fetus likely has severe brain damage, and that’s a legitimate concern.  This may not be relevant to the legal question – either they get to make the decision or they don’t – but as a human interest story, which this is, it would seem an obvious question that the media failed to ask.

What do you think?  In view of the facts, and questions, I raise above, is this solely the husband’s decision?

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Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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