Should the State be able to force continued pregnancy after death?

Should the State be able to force continued pregnancy after death?

“Let God be God.”

Yesterday, Sunday April 15, 2018, saw the premiere of a new documentary film by award-winning director Rebecca Haimovitz entitled “62 Days”. It is the story of the death of Marlise Munoz and her family’s fight to accord her dignity in death.

Marlise Munoz, aged 33, mother to a 15-month old son, and much-loved wife and daughter, was 14 weeks into her second pregnancy when she collapsed, apparently with a blood clot in her lungs.   She was discovered close to death about an hour later by her firefighter paramedic husband. Despite efforts to save her she was pronounced brain dead, legally dead, two days later at John Peter Smith Hospital in Fort Worth, Texas. The hospital, interpreting its duties under Texas law, refused to switch off the life-support machines despite the wishes of her husband and parents, and despite being informed that Marlise had previously stated such a wish should need ever arise. The hospital invoked section 166.049 of the Texas Health and Safety Code which states, “A person may not withdraw or withhold life-sustaining treatment [under this subchapter] from a pregnant patient,” in support of its actions.

Erick Munoz then sued the hospital for “cruel and obscene mutilation of a corpse” bringing a motion to compel the hospital to remove his wife from “life sustaining” measures. On January 24, 2014, State District Judge R.H. Wallace, finding that Marlise Munoz was dead, determined that the provisions of Section 166.049 of the Texas Health and Safety Code did not apply to her, and ordered the hospital to pronounce Marlise Munoz dead and remove all “life sustaining” intervention by no later than 5pm on January 27, 2014, some 62 days since she had collapsed.

This case, the tragedy of Marlise, and the struggle of her family to accord her dignity in death, raises many important ethical, legal, scientific, and other questions including significant questions of human rights and reproductive justice. Such questions include the continuing conflict between efforts to accord personhood or other rights to the fetus and the pregnant woman’s rights to autonomy and privacy in her decision-making. It also raises questions about the moment at which rights accrue and the moment at which they are subsequently extinguished. What is the meaning of “dignity in death,” and what, if any, property rights vest in a dead person and to whom. It also starkly highlights the issue of whether the state has the right to intervene and determine what should happen to the body of a person, a pregnant woman, who has ceased to live. In other words, should or does the state have the power to keep pregnant women “alive” so that the fetus may potentially be delivered? It could be argued such power amounts to the state “playing God.” Alternatively, as the Munoz family pastor reflects in the film,  the state could, perhaps should, resist the urge to assume such divine powers: “If the hospital had not intervened she would have died and the baby would have died with her. It’s no abortion. I guess you just let God be God at that point.”

Unfortunately, the case of Marlise Munoz and her family is not unique. Indeed, over 25 years earlier the Superior Court of Georgia granted a declaratory judgment maintaining life support systems for a pregnant but brain dead woman, Donna Piazzi, in order to preserve the life of her unborn child.  Donna Piazzi was taken to hospital unconscious on June 27, 1986. By the time the case came before the Court on July 25, Donna was brain dead and then carrying a twenty-week fetus. Her husband wished life-sustaining treatment to be withdrawn. Antithetically, a man named David Hadden, who claimed to be the father of the fetus, wished for such treatment to be maintained until the fetus became viable. The Court, in granting declaratory relief, found that the pregnant woman’s rights to privacy were extinguished upon brain death and that “public policy in Georgia requires the maintenance of life support systems for a brain dead mother so long as there exists a reasonable possibility that the fetus may develop and survive.”[1] Donna’s baby was delivered by Caesarean section on August 17, some 14 to 15 weeks premature. The baby died of multiple organ failure some two days later.

Nor is the case of Marlise Munoz likely to be the last such tragedy. According to the Center For Women Policy Studies, more than thirty states in the U.S. have legislation enabling life-sustaining treatment to be forced upon a terminally ill pregnant woman.

These cases raise the spectre of pregnancy as a condition that diminishes women in the United States. Surely, the necessity to debate the issues raised by these tragic situations and their human and constitutional rights implications could not be more urgent and compelling. Hopefully, this film will open space for this discussion to take place.



[1], pg 418

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