Pregnancy and Brain Death--The Case of Marlise Munoz

While Jahi McMath’s family had to fight to maintain treatment for their daughter after she lost brain function and was declared dead, Marlise Munoz’ family is fighting to stop her treatment after she lost brain function and reportedly was declared dead. Ms. Munoz is pregnant, and the hospital hopes that doctors there will be able to deliver her child after it becomes viable.

Should Ms. Munoz’ pregnancy make a difference? Many observers do not think so, and have denounced the hospital that is continuing to provide artificial ventilation and other intensive care (e.g., here and here). But there is no clear answer in ethics or law for cases like this. Reasonable people can differ, and reasonable hospitals can come down on either side of the question whether Ms. Munoz’ family can refuse further care on her behalf or whether the hospital should try to bring her fetus to term.

Indeed, courts have disagreed on the question whether even a mentally competent pregnant woman can refuse medical treatment that is needed to protect the health or life of her fetus. Some courts have sided with the woman’s right to decide; others have sided with the public interest in preserving fetal health. Courts have been especially willing to require treatment when it would not pose any risk to the woman’s health. If Ms. Munoz is dead, continued medical care cannot cause any harm to her health.

In some ways, the argument for continued care is weaker with a dead pregnant woman. In the cases involving mentally competent women refusing treatment, the women want to bear the child. They just want to do so without certain medical interventions. Ms. Munoz' family believes she would not want to bear the child at this point, and they do not want her to bear the child either. It’s not only unwanted medical treatment that is being imposed. There also is unwanted parenthood being imposed on Ms. Munoz and her husband.

Moreover, unlike the usual pregnancy, Ms. Munoz’ fetus will not become viable if left alone. All in all, this is a very hard case, and it is important to treat it as such. The interests of Ms. Munoz and her family are important, but so is the societal interest in protecting fetal life. Harsh condemnation of the hospital and its medical staff is not warranted.

[cross-posted at HealthLawProfs and orentlicher.tumblr.com]

Comments

[alta charo]

David - All good points. But the treatment of pregnant women is very odd, considering the parallel situations involving parents of live-born children. A terminally ill child in desperate need of a liver transplant (and no donor match in the national banks) is not sufficient to force a father -- who may be the child's only chance for survival - even to submit to a simple screen for compatibility, let alone for forced surgery to remove a liver snip. But pregnant women can be forced to undergo c-sections. Thousands of people die each year for lack of a transplantable organ, yet we do not take organs from cadavers without prior permission of the deceased person, and even then rarely override the living families objections. But here we take not just an organ but an entire dead body and use it to try to save an as-yet unborn nonviable fetus. So whether it is because the dead cannot be harmed or because parents have special duties of sacrifice to offspring, there are greater liberties taken with the freedom and bodily autonomy of women than of men, and greater degrees of intervention for those not yet viable as compared to those already born. It is striking, to say the least.

[David Orentlicher]

Alta, thanks for your very good comments. I'm not sure it's as striking as you suggest. First, forcing treatment on pregnant women while alive is a very different matter from what we have with Ms. Munoz. And I think what's particularly important with the forced treatment cases is the risk to the pregnant woman's health. Thus, just as we don't force fathers to assume health risks for their children, we should not force pregnant women to assume health risks for their fetuses.

As to whether Ms. Munoz is being treated so differently from other dead people, there is quite a lot of precedent for taking organs from dead persons without their permission. Until recently, medical examiners in many states had authority to retrieve corneas or even organs without permission, and some states still have such statutes. To be sure, those statutes allow for people or their families to lodge their objections in advance (not much of an option for most people who would have organs taken by a medical examiner), but there also is a difference between a pregnant woman's obligations to her fetus and another person's obligations to strangers.

It's also not so clear that treatment of Ms. Munoz places the burden on the woman and exempts the man. If the child is born, it is Mr. Munoz who will assume the responsibilities of parenthood.

[alta charo]

Thank you David. But as I recall, corneas were taken without permission only when a body was held by the state, which is why it occurred disproportionately to those who were involved in crimes. This in turn had a disparate impact on minorities. I think it is not too much of a stretch to say that some dead bodies are given less respect than others.

As to Ms. Munoz duty to her fetus, it is one of the enduring conundrums that we allow her to terminate while she is alive, but when dead she suddenly has a duty of care to a pre-viable fetus that precludes termination. And for those who would argue that this simply points to the need to ban abortion more generally, I would ask whether the typical exception for rape and incest is also present in the Texas statute. After all, that exception is not just about how hard it is to be forced to carry a pregnancy that began with rape. It is also about a notion that having sex voluntarily means you are now duty-bound to any consequence, but involuntary sex carries no such duty. If Munoz had been raped, would the state allow her family to bury her?

And as to burdens, I was not suggesting that putting her corpse to use as a gestational chamber is a burden on her. She is dead. So my point is not the relative burdens placed on men and women, but rather the relative duties that are imposed, parent vs pregnant woman, live child vs previable fetus.

I appreciate your points but let me ask - if a parent was the only possible donor for his or her dying child, and the parent died, would the state take the position (let alone pass a law) that life-preserving organs from the dead parent could be removed without prior permission of the deceased and over the objections of the family? It is an unlikely scenario, I grant you, but if it occurred, I do not see any law that wrests the organ from the corpse, let alone maintains the corpse with artificial heart-lung support for months to ensure availability of any life-preserving tissue or organs.

It might be different if we generally saw dead bodies as a resource for the common good and took organs and tissue as a matter of course absent very specific and justified exceptions. At least then we could have agreed that the dead, who can no longer experience harm, should be made available to save the living, viable or previable. But without that, the Munoz case seems singular to me.

[David Orentlicher]

Alta, I think your hypothetical of the deceased parent being the only possible donor for a dying child is instructive. I think that state legislatures would be receptive to a duty in such cases. And I certainly would advocate for such a duty.

[kitty]

There are couple of considerations that are missing in your article.
1. The condition of the fetus i.e. that it has virtually no chance of being born healthy or even at all. The hospital hasn't bothered to check if there is any brain activity there only that it has heat beat, but fetuses without brains also have heartbeat until the delivery. The mother was without oxygen for at least an hour and thus so was the fetus. How do you think it affected its brain? Now it's inside of a corpse that the doctors attempt to prevent from decomposing. All nutrition and everything that mother's body provides during the normal pregnancy is controlled by the brain. They are trying to simulate it artificially. But as any diabetic would tell you, it's not possible to simulate exactly the same level of hormones and fluctuation that the brain controls naturally. How do you think this affects the fetus? Also, they may slow decomposition of her body, but on some level it's still occurring and it causes the poisons to be released into the bloodstream, what do you think it does for fetus chances?

There is no precedent for it, not a single case of a healthy baby being born under these conditions. What they are doing is human corpse experimentation. Is this legal? The Texas law talks about living will and "pregnant patient", but as she is already dead she cannot be either. DNR is about keeping one on 'life support", this is "corpse support".

2. Who is going to pay for it? The cost of this scientific experiment is $4000 a day. Is the hospital going to bill the father? Do they have a right to bill the father in these circumstances? No insurance covers dead bodies, and all insurance policies have limits. The bill here is in the millions.

What about care of a brain damaged child if for some miracle this experiment results in a live baby? Does state have a right to impose it?

[Michelle Meyer]

Kitty,

Re: "The condition of the fetus i.e. that it has virtually no chance of being born healthy or even at all. . . . There is no precedent for it, not a single case of a healthy baby being born under these conditions."

You'll want to take a look at the systematic review by Esmaeilzadeh et al, BMC Medicine 2010, 8:74, http://www.biomedcentral.com/1741-7015/8/74, who report:

"In 12 (63%) of 19 reported cases, the prolonged somatic support led to the delivery of a viable child. . . . Congenital defects were reported for only one infant, who was diagnosed with fetal hydantoin syndrome resulting from previous chronic phenytoin usage by the mother. Four infants required temporary mechanical ventilation because of neonatal respiratory distress syndrome or pneumonia. Fungemia was diagnosed in one infant, and he was treated with amphotericin B. However, not every infant was sufficiently followed to determine the long-term effects of prolonged maternal life support. Postnatal follow-up up to 24 months was available only for six infants. All of them developed normally and apparently had no problems related to their exceptional intrauterine circumstances." The authors conclude: "According to our findings, prolonged somatic support can lead to the delivery of a viable child with satisfactory Apgar score and birthweight. Such children can also develop normally without any problems resulting from their intrauterine conditions."

If you break down that data a bit (see http://www.biomedcentral.com/1741-7015/8/74/table/T1) and focus on the outcomes for fetuses whose gestational ages upon declaration of brain death were similar to the Munoz fetus (14 weeks), you'll find a case where the fetus was 15 weeks gestation at the time of brain death (compared to the 14w Munoz fetus), was delivered successfully at 32 weeks gestation, and was developmentally normal at 11 months, and another viable birth where the fetus had been 16 weeks gestation at brain death. You'll also find fetuses who eventually died in utero, after brain death was declared at 13, 14, 15, and 17 weeks gestation (5 cases total); and one 17 week gestation case in which the baby died at 30 days after birth, following delivery at just 25 weeks, from complications of premature birth (and so perhaps not directly related to posthumous gestation).

We shouldn't pretend that the outcomes for these fetuses is certain or always rosy, but things are a bit more complex than you suggest.

[David Orentlicher]

You are correct that the fetus' condition is an important consideration. We do not have sufficient data yet, but the evidence suggests that good outcomes are feasible in many cases of birth after the mother's death. If a hospital continues to provide life support for the fetus in cases like this, the fetus' condition needs to be monitored, and the condition should be taken into account in deciding whether treatment should be imposed. We give parents some freedom to refuse life-sustaining treatment for their children, so we certainly should give Ms. Munoz' family at least the same freedom to refuse life-sustaining treatment for her fetus.

As to the costs of care, the care is life support for the fetus, and I would expect insurers to cover those costs just as they would cover life support for an infant.