Brain dead patient at centre of abortion debate
With a ventilator slowly inflating her lungs and forcing oxygen into a bloodstream moved through her body by an artificial heartbeat, Marlise Munoz is unaware that she has become the focus of yet another American debate over what it is to live and die, and over abortion.
Marlise, a paramedic, was 33 years old and 14 weeks pregnant when she collapsed in November, probably from a pulmonary embolism, a fatal blood clot in a lung.
Her husband Erick, a firefighter, found her slumped on the kitchen floor in the middle of the night and called for help even as he fought to resuscitate her.
At the John Peter Smith Hospital in Fort Worth, Texas, doctors used drugs and electric shocks to restart her heart. They were too late. Doctors discovered that though machines were able to artificially maintain some of the mechanical processes of her body, Marlise’s brain was silent. She was dead, clinically and legally.
The family gathered by her bedside in the hospital’s three-storey intensive care unit and prepared to farewell her. They were stunned when doctors refused to turn off the ventilator.
Having detected a foetal heartbeat hospital authorities said they were bound by a Texas law that prohibits doctors from withholding “life-sustaining treatment” from a pregnant woman.
Erick protested. He and Marlise had lived their professional lives close to life and death and had discussed circumstances like these. Marlise did not want such artificial medical intervention. Marlise’s extended family and Erick’s colleagues agreed.
Marlise’s mother, Lynne Machado, 60, told The New York Times: “It’s about a matter of our daughter’s wishes not being honoured by the state of Texas.” Her father, Ernest Machado, 60, a former police officer, told the Dallas News: “That poor foetus had the same lack of oxygen, the same electric shocks, the same chemicals that got her heart going again. For all we know, it’s in the same condition that Marlise is in. All we want is to let her rest, to let her go to sleep. What they’re [the hospital staff] doing serves no purpose.”
Many legal and medical experts agree, including Tom Mayo, a professor of law at Southern Methodist University Law School who helped draft Texas’s so-called “pregnancy exclusion” law.
He told Fairfax Media the hospital’s interpretation of the law is simply wrong; that it was never intended to outlaw practices that had been legal in the past, such as withdrawing care in these circumstances.
More crucially, he says, Munoz is dead. She is no longer a “pregnant patient”.
However the hospital has maintained the treatment, and the foetus inside Marlise’s lifeless body is now a little over 20 weeks old, though its condition remains unknown.
As the debate has unfolded it has been noted that John Peter Smith Hospital is governed by a Republican-dominated board, and that it bans abortion.
This week Erick took legal action against the hospital, filing a law suit that says in part: "Marlise Munoz is dead, and she gave clear instructions to her husband and family - Marlise was not to remain on any type of artificial 'life-sustaining treatment,' ventilators or the like."
It goes on to argue that not only does Erick have “a legal right to custody of her body” but that the hospital has violated his rights “by disturbing and damaging the body, treating it in an offensive manner, and refusing to release it.”
The hospital has until early February to respond.
Until then, it seems clear that the Munoz’s family tragedy will continue to be the focus of America’s ongoing debate over abortion.
Since the US Supreme Court enshrined women’s right to abortion 40 years ago opponents have failed to directly challenge it. Nonetheless the strength of opposition to abortion has never waned and recently right-to-life groups have enjoyed considerable success in limiting access to abortion, especially in conservative states.
According to a recently released report by the non-partisan Guttmacher Institute, which studies access to abortion,
205 abortion restrictions were enacted over the past three years (2011–2013), but just 189 were enacted during the entire previous decade (2001–2010).
Another trend, says Lynn Paltrow, director of National Advocates for Pregnant Women, is the rise of “pregnancy exclusion” laws, which have now been passed in some form in over 30 states.
Paltrow’s organisation has charted the arrests of hundreds of women for actions that would not have been illegal had they not been pregnant. Women have been arrested for missing scheduled neo-natal appointments, drinking, taking drugs or even falling down stairs, she told Fairfax Media.
The common effect of these laws, she says, is to remove the rights and agency of pregnant women and transfer it to the state. This, she argues, creates a separate and unequal status for pregnant women.
In Paltrow’s view the hospital and the state have not only turned Marlise’s body into an “object for the gestation of a foetus” but are in effect using her as the subject of an experiment, because there is little or no evidence that the foetus can survive in these circumstances.
Paltrow is also concerned about the cost of the treatment.
Medpage Today, an online medical news service, has estimated that should the hospital keep Marlise in intensive care until it considered the foetus viable, and should the foetus survive to be delivered by cesarean section and begin its own intensive care treatment, the hospital bill would come to between $US439,500 and $US984,500.
It is unclear whether insurance coverage would extend to a woman who has been declared brain-dead.
While Medpage Today quoted several ethical experts as saying that using extraordinary means to keep a foetus alive against the wishes of a deceased patient and their family should “probably never” be used, not all agreed.
Texas Medical Association spokesman Robert Tenery told Medpage Today that the foetus’s heartbeat at the time of Marlise’s admission was a strong enough reason to “thwart decisions to remove life support”.
To many right-to-life supporters, Texas law and the possibility of saving the life of the foetus overrides concerns over costs, associated risks and even the wishes of Marlise and her family.
“My heart goes out to them," said the Republican state representative Stephanie Klick. "But the law’s clear that you can’t withdraw life support. This is probably the one area of that law that I do support.”
But asked what he thinks of what Marlise and her family are going through as a result of the law he helped to draft, Mayo said he found it “grotesque”.
Sydney Morning Herald