Marlise Muñoz and family, from her Facebook page.
Marlise Muñoz and family, from her Facebook page.

Brain-dead pregnant woman sparks debate about beginning, end of life issues (updated)

With advances in medical technology, questions about when life begins and ends grow more complicated, ethicists say.

Editor's note: This story was updated Jan. 28 with comments from Central Seminary Professor Tarris Rosell.

By Bob Allen

An unusual controversy involving both ends of the “womb to tomb” spectrum of the sanctity of human life debate ended quietly Jan. 26 in a hospital in Fort Worth, Texas, when doctors removed life support from a 33-year-old pregnant woman diagnosed as brain dead.

That ended a two-month legal battle for survivors of Marlise Muñoz, who was declared brain dead two days after her husband found her unconscious on Nov. 26, possibly from a blood clot that traveled to her lungs.

Doctors at John Peter Smith Hospital in Fort Worth had refused the family’s request to take Muñoz off a ventilator because she was 14 weeks pregnant with the couple’s second child. They cited a 1999 Texas law that requires a pregnant woman to be kept on life support until her fetus is viable.

Last week, doctors said the 22-week-old fetus was “distinctly abnormal,” casting doubt about its ability to survive outside the womb. On Friday, state District Judge R.H. Wallace ruled that Muñoz should be removed from life support.

“May Marlise Muñoz finally rest in peace and her family find the strength to complete what has been an unbearably long and arduous journey,” lawyers for her husband, Erick Muñoz, said in a statement reported in the media.

The case, along with another in California surrounding a 13-year-old girl who went into cardiac arrest after having her tonsils removed, reignited the debate over whether there is a right to die. The Muñoz dispute took on added weight because it pitted the woman’s stated wishes not to be kept on life support against her baby’s right to be born.

david-gushee“My opinion, based solely on news reports, is that both the family members and the judge were correct in their judgments in this case,” said David Gushee, distinguished university professor of Christian ethics at Mercer University serving this year as theologian-in-residence for the Cooperative Baptist Fellowship. “My heart goes out to the Muñoz family as they grieve their losses.”

Tarris Rosell, professor of pastoral theology in ethics and ministry praxis at Central Baptist Theological Seminary in Shawnee, Kan., said the Muñoz case “has stirred the pot of ethical discourse more so than any bioethics case recently.”

Rosell said he subscribes to on online bioethics mailing list with nearly 1,000 professional members, where the “Muñoz case struck a nerve,” generating hundreds of posts.

While the Constitution doesn’t specifically mention a right to privacy, the U.S. Supreme Court ruled in 1891 that common law protects “the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."

In 1914, the Supreme Court established the principle of “informed consent” in medicine, finding: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages.”

Early on cases of patients refusing treatment were rare and usually involved medical practices forbidden by religious beliefs, also bringing the First Amendment into play. With advancements in medical technology allowing life to be sustained longer and longer, however, the ethics of refusing treatment got more complicated.

The New Jersey Supreme Court determined in 1976 that Karen Ann Quinlan, a young woman who suffered severe brain damage as the result of anoxia, and entered a persistent vegetative state, could be taken off a respirator.

The decision, left standing by the U.S. Supreme Court without review, established a right of privacy grounded in the federal Constitution to terminate treatment. The court recognized the right is not absolute, however, and must be balanced against asserted interest of the state.

In 1990, the high court refused to allow removal of artificial feeding and hydration equipment from Nancy Beth Cruzan, a Missouri woman who remained in a persistent vegetative state — a condition where a person exhibits motor reflexes but shows no evidence of cognitive function — seven years after a car wreck because her parents could not prove she would have wanted to die.

The Cruzan ruling sparked the movement of advance medical directives including the living will, a legal document that spells out what kind of life-prolonging treatment an individual does or does not want. A medical power of attorney authorizes someone to make end-of-life decisions if you cannot make them yourself. Another advance directive is the do-not-resuscitate order, a request not to receive CPR if you go into cardiac arrest.

Today, all 50 states have laws regarding an individual’s right to create an advance directive. In at least 31 of those states, however, according to a 2012 paper by the Center for Women Policy Studies, there is a pregnancy clause requiring life support to continue until the fetus baby is either declared not viable or the baby is born alive, even if the woman has indicated previously she does not want her life prolonged.

Abortion rights have also been a moving target since the landmark 1973 Roe v. Wade decision establishing a woman’s right to have an abortion.

While striking down most state laws at the time banning abortion, the Supreme Court acknowledged that the state’s interest increases as prenatal life advances. Under Roe, a woman could seek an abortion freely in her first trimester, in an authorized clinic during the second trimester and states could prohibit abortions during the third trimester.

The Supreme Court abandoned the trimester framework in 1992, saying the state’s interest surpasses the woman’s rights at viability. In 1973, that was typically about 28 weeks of gestation, but with advances in neonatal treatment had been reduced to about 23 or 24 weeks by the early 1990s.

Last year Gov. Rick Perry signed a law pushing the cutoff back to 20 weeks, the time when some scientists say the fetus is developed enough to feel pain. That gave Texas one of the most restrictive abortion laws in the country. A federal judge blocked enforcement of the law, and a federal appeals court is in the process of deciding whether it is unconstitutional.

Muñoz’s family said the 1999 law requiring a pregnant woman to be kept alive until her fetus is viable did not apply to her because even though machines kept her breathing and her heart beating, she was not terminally ill but already dead.

Anti-abortion groups like Texas Right to Life and Operation Rescue campaigned to keep Muñoz hooked up to give her baby a chance at survival. NARAL Pro-Choice America petitioned Texas Attorney General Greg Abbot to respect the family’s wishes to remove her from life support.

Rosell said from a pastoral-care perspective his heart goes out to everyone involved, including caregivers who likely grieved alongside the family but were compelled to act by the powers that be.

After reading the court brief, Rosell said he still has unanswered questions about why physicians “would agree to maintain a physiological fiction all the while knowing the mortal truth” or if any of the providers really imagined their pre-viable fetal patient would survive after oxygen deprivation followed by “weeks or months in a cadaveric womb.”

“There are so many dimensions to this situation, so many principles at stake and in conflict, so many secondary stakeholders in so many places far from that Texas hospital room,” Rosell said. “At long last, may we all allow Marlise to rest in peace, together with her deceased baby sadly but suitably still entombed in the mother's womb.”