Cross posted from Frederick Leatherman Law Blog

How can it be unethical to keep a brain-dead woman on life support but unlawful to disconnect a brain-dead pregnant woman from life support when both women are medically dead?

Erick Munoz filed a lawsuit yesterday against the John Peter Smith Hospital in Tarrant County, TX (Fort Worth) seeking an order directing the hospital to disconnect his brain-dead wife, Marlise Munoz, from life support. Under ordinary circumstances, he would not have had to file the lawsuit because the hospital would have disconnected her. These are not ordinary circumstances, however, because she was 14 weeks pregnant when she died and the hospital is claiming that it is prohibited by law from disconnecting her.

Section 166.049 of the Texas Health and Safety Code provides in pertinent part:

A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.

Marjorie Owens, WFFA-TV, Dallas-Fort Worth has the story:

On the morning of Nov. 26, Munoz found his wife unconscious on the floor of the couple’s kitchen. Munoz said later that day he was told by doctors at John Peter Smith Hospital that his wife — who was 14 weeks pregnant with the couple’s second child — was brain dead.

Doctors told her family they suspect she suffered a pulmonary embolism.

Since then, Munoz has been in a battle with the hospital to remove his wife from life support. While tests on his wife’s fetus show a normal heartbeat, Munoz said it was against his wife’s wishes to be kept alive by a machine.

Doctors cannot determine the medical condition of the fetus until it reaches 24 weeks (it’s now at 18 weeks).

He argues that she is not a “pregnant patient” because she is clinically dead and he fears the health of the fetus was compromised by her death.

I agree.

Keeping a clinically dead woman’s lungs functioning on a ventilator so that a fetus can be brought to term in a decomposing body is too ghoulish to consider, except in Texas apparently, which ironically takes pride in executing people sentenced to death, including at least one wrongfully convicted innocent person.

This case reminds me of Jahi McMath, the 13-year-old brain-dead girl who died following surgery to correct sleep apnea by removing her tonsils, adenoids and other sinus tissue obstructing her airway. McMath was not pregnant, of course, and the hospital insisted on disconnecting her from life support over the strenuous objections of her mother, who went to court and obtained a temporary order that stopped the hospital long enough for the mother to find a place that would care for her daughter.

The hospital took the position that absence of brain activity constitutes “death” because there is no conscious awareness and the condition is irreversible. Therefore, the medical staff was ethically required to disconnect her from life support. Although the hospital initially objected to the transfer on ethical grounds, it relented and withdrew its objection conditioned on the coroner issuing a death certificate and serving as a paper middleman accepting possession of the body from the hospital and immediately transferring it to the mother who signed a document accepting full responsibility for whatever happened thereafter.

Meanwhile, Jahi’s brain is liquefying and her body is slowly decomposing on a life support machine at an undisclosed location.

These two tragic cases illustrate the importance of giving some careful thought to our own eventual death while we are “of sound mind and body.” I am referring to preparing a written “living will” that expresses our intent with regard to what we want or do not want done to us while we are alive, but unconscious and unable to communicate. For example, do we want to be resuscitated? A DNR order is an order saying do not resuscitate me.

I am not going to advise anyone about what to put in a living will. That’s for you to figure out. There may be legal requirements that have to be satisfied in your jurisdiction to have a valid living will, so you should consult a lawyer before you make one.

No discussion of end-of-life issues is complete without discussing assisted suicide.

Three states (Vermont, Oregon and Washington) have passed laws permitting physician assisted suicide. One state (Montana) has legalized physician assisted suicide by a court decision. Physician assisted suicide is unlawful in the rest of the states and the District of Columbia.

I believe every person has an inherent right as a conscious organic life form to a humane means of assisted suicide.

The issue that inevitably arises is how should we deal with the eligibility issue?

Should we ignore it?

Must a person be at least a certain age before they are eligible?

How about mental competence? Must they be competent to make the decision? Who decides? According to what standard?

Can someone else, such as a husband or a wife or a family member, make the decision for an incompetent person? For example, someone on life support or someone suffering from dementia or Alzheimer’s?

Should a change-your-mind minimum period for reflection be mandatory?

What about seeing a counselor?

If counseling is required, what qualifications must a person have to become certified as an assisted-suicide counselor?

Should religious counseling be part of the process?

What about the process itself? Big party first? Should hallucinogens be a part of the process? What about choosing among a number options? Cost?

What about starting a business that specializes in helping people plan their demise and the ethics of creating legally enforceable contracts with monetary damages for changing your mind?

And so on.

What do you think?

For more information on assisted suicide and euthanasia, go here.