Cross posted from Frederick Leatherman Law Blog

I cannot stop pondering the ethical dilemma created by doctors keeping Marlise Munoz’s decomposing corpse on a ventilator so that the fetus in her womb can reach full term and be birthed into this world.

Since the beginning of our species approximately 200,000 years ago, pregnant women have died and will continue to die. That reality is not going to change, although the percentage of pregnant women who die probably will decline over time. Until relatively recently, the fetus perished with the mother, unless someone removed it with forceps or cut it out of the dead or dying mother’s body and it had developed sufficiently to survive on its own.

Our technology has created an ethical dilemma.

We used to define death as the cessation of a beating heart. We declared a person dead, if they had no pulse and we could not restart their heart.

If we could restart their heart, we could keep them “alive” pursuant to that definition, even if they did not regain consciousness, such as might be the case with someone in a coma.

We have changed our definition of death because our technology has rendered it obsolete.

We have intravenous lines to provide plasma and feeding tubes to provide nourishment.

Liquid waste can be removed with catheters.

Nurses and their aides can clean-up solid waste and re-position a patient to prevent bed sores and skin ulcers.

Ventilators can oxygenate the blood and eliminate carbon dioxide from it by inflating and deflating the lungs with air and a beating heart will circulate the oxygenated blood.

We can do all of these things to keep someone alive, pursuant to that definition, even if they never regain consciousness.

However, in what sense is a person alive, if he or she is unconscious and brain dead, an irreversible condition in which there is no detectable brain activity and no possibility of regaining consciousness?

Rene Descartes answered the question in his Principles of Philosophy, published in 1644:

Cogito ergo sum: I think, therefore, I am.

We have redefined death as the cessation of brain activity. Indeed, without the assistance of a ventilator, a brain-dead person’s heart would soon stop beating and they would be declared dead pursuant to the old definition. For that reason, doctors have decided that it’s unethical to keep a brain-dead body on a ventilator. Expressed another way, it’s unethical to keep a corpse attached to life support equipment.

The ethical question is whether we should make an exception to that rule when a pregnant woman dies?

I propose two simple rules:

  1. Always disconnect a corpse from life support equipment; and
  2. Remove the fetus from the corpse, if it is reasonably capable of surviving outside the womb, given the state of medical technology. (I am thinking of premature births and hospital nurseries)

I would disconnect Marlise Munoz from life support immediately and I would not remove the fetus from her womb because it is not reasonably capable of surviving outside the womb, given the state of medical technology.

Marlise Munoz is a corpse, not a person.

A corpse cannot be a patient.

Her unborn child is a fetus, not a person, it has no cognizable right to life, and it certainly cannot viably survive outside the womb. See Roe v. Wade, 410 U.S. 113 (1973).

The Texas statute upon which the hospital relies in refusing to disconnect her suffers from the same infirmity as the Texas statute criminalizing abortion that the United States Supreme Court struck down in Roe v. Wade because it prohibits the hospital from disconnecting any pregnant woman from life saving equipment, regardless of the viability of the fetus to survive on its own outside the womb. The statute also impermissibly requires a doctor to violate an ethical rule of the medical profession, which is much better suited to establish its own ethical rules than the Texas Legislature, which has no business criminalizing ethical medical conduct.

Since Marlise Munoz is brain dead, we can infer that the fetus was deprived of oxygenated blood for at least 6 minutes. I don’t know how that might have affected a 14-week old fetus. Just because its heart is beating normally, however, does not mean it’s okay and it certainly cannot viably survive outside the womb, a principle concern in Roe v. Wade.

This ghoulish situation reminds me of horror plots such as Mary Shelley’s Frankenstein, George Romero’s Night of the Living Dead, Ira Levin’s Rosemary’s Baby, Stephen King’s Pet Cemetery and their various progeny.

Our technology has outdistanced our wisdom.

A baby coming into existence by feeding on its mother’s corpse makes me shudder with revulsion.

Some things are not meant to be.

If you are not familiar with this case, please read my article yesterday titled, “Ethics of keeping brain-dead pregnant woman on life support.”