Tough  Decisions  (Part II)                            

 

There are times in our lives when we have to make decisions and some of them are pretty tough to make. But some people are faced with decisions that are extremely tough to make. This is the second of a series of really tough decisions that were made that has brought real controversy into the lives of everyone involved.

 

Keeping a brain-dead woman alive

                   

At age 33, Marlise Munoz was brain-dead after collapsing on her kitchen floor in November from what appeared to be a blood clot in her lungs. The diagnosis at the John Peter Smith Hospital in Texas was crushing and irrevocable—her brain really was dead even though the rest of her body was still alive.

 

Once it is established that a person’s brain really is dead and beyond any hope of functioning again, the person is generally considered as deceased and is then prepared for burial.

 

Now I realize that there have been times when a person has been classed as brain-dead and soon after, their brain is functioning again. But for the purpose of this article, I shall presume that Marlise’s brain is beyond any hope of ever functioning again.

 

But as her parents and her husband prepared to say their final goodbyes in the intensive care unit at the hospital and to honor her wish not to be left on life support, they were stunned when a doctor told them the hospital was not going to comply with their instructions. The reason for the doctor’s decision was that Marlise was 14 weeks pregnant.  At this time, there is no way of knowing if the brain of the fetus has been damaged because of the brain death of its mother especially since its mother was without oxygen prior to the ambulance arriving. 

 

Texas is one of more than two dozen states that prohibit, with varying degrees of strictness, medical officials from cutting off life support to a pregnant patient even though their brain is dead.

 

More than a month later, Marlise still remains connected to life-support machines on the third floor of the I.C.U., where a medical team monitors the heartbeat of the fetus, now in its 20th week of development.

This unfortunate woman’s case has come into a strange collision of law, medicine, the ethics of end-of-life care and the issues swirling around abortion, specifically when life begins and how it should be valued.

 

 “It’s not a matter of pro-choice and pro-life,” according to Marlise’s mother, Lynne Machado. She said, “It’s about a matter of our daughter’s wishes not being honored by the state of Texas.”

 

Her daughter apparently didn’t sign a Living Will in which she could have stated that she didn’t want to be kept on life support if she was brain-dead but if she did sign such a document, would she also say that no exception would be made even if she is pregnant? I doubt it. And even if she had that exception added as part of her Living Will, would it take precedence over her wishes to be taken off of life support?

 

Marlise’s father, Ernest Machado, 60, a former police officer and an Air Force veteran, put it even more bluntly. “All she is, is a host for a fetus.” He then added, “I get angry with the state. What business did they have delving into these areas? Why are they practicing medicine up in Austin?”

 

Marlise’s parents said they wanted to see the law overturned, but they have not sought any legal action against the hospital, though they have not ruled that possibility out either. The hospital maintains that it is following the law, although several experts in medical ethics said they believed the hospital was misinterpreting it.

 

A crucial issue is whether the law applies to pregnant patients who are brain-dead as opposed to those who are in a coma or a vegetative state. The law, first passed by the Texas Legislature in 1989 and which was amended in 1999, states that a person may not withdraw or withhold “life-sustaining treatment” from a pregnant patient.

 

Medical ethicists are puzzled by the position that the hospital is taking. Legal and ethical experts, meanwhile, have said they were puzzled by the conflicting accounts of her condition. Brain death which is an absence of neurological activity, can be readily determined even if other bodily functions can be maintained.

Arthur L. Caplan, director of medical ethics at New York University’s Langone Medical Center in Manhattan said,  “The Texas Legislature can’t require doctors to do the impossible and try to treat someone who’s dead. “I don’t think they intended this statute the way the hospital is interpreting it.”

 

The restrictive measures placed in the law by the Texas legislators were largely adopted in the 1980s, with the spread of laws authorizing patients to make advance directives about end-of-life care like living wills and health care proxies, said Katherine A. Taylor, a lawyer and bioethicist at Drexel University in Philadelphia. The provisions to protect fetuses, she said, helped ease the qualms of the Roman Catholic Church and others about such directives.

 

 Ms. Taylor also said, “These laws essentially deny women rights that are given others to direct their health care in advance and determine how they want to die,” Ms. Taylor said. “The law can make a woman stay alive to gestate the fetus.”

 

I agree with that law. If the fetus is still alive, then in my respectful opinion, the hospital has an obligation to protect it until it can be removed from its mother’s womb in safely.  I don’t see any justification in aborting a viable living fetus simple because its mother’s brain isn’t fully functional. 

 

To prove my point, ask yourself this rhetorical question. If your mother was brain dead when you were removed from her womb and you have lived a full and happy life, would you not be grateful to the doctors who cared for you and your mother’s body while you were in the final stages of gestation?

 

The statute in question is contained right in the part of the Texas Code that permits people to create Living Wills, or as they are called in some states, Advance Medical Directives and is fairly short and straightforward, saying simply that “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.”

 

There doesn’t appear that there is any way under Texas law that a person drafting a Living Will can void this provision of the law. Additionally, it doesn’t appear that the law makes any distinction regarding the condition of the patient. This means that someone such as Marlise, who is effectively dead for all intents and purposes, and there is also no distinction made between someone who is, say 8 1/2 months pregnant and someone who, like Marlise was when she was first taken to the hospital, is only 3 1/2 months pregnant, which could be far outside any reasonable range of viability, and her current 5th month of pregnancy is, at the very least, at the very outer edges of fetal viability. Indeed, under this law, it would appear that under this law, a woman who is a mere few weeks pregnant and reports to the Emergency Room in a condition that eventually evolves into brain death would be forcibly kept alive for the next 8-9 months regardless of what her wishes might be as expressed in an otherwise legal document, and despite the wishes of her closes family members. To some, this may not only be fundamentally absurd but absolutely cruel and inhuman. But who is it cruel and inhuman to? The brain-dead mother wouldn’t suffer from that cruelty and inhumanity, that’s for sure.

 

Not surprisingly of course, the “pro-life” people approve of the decision to keep the woman’s body alive so that the fetus can be born

 

In Texas, the law and the hospital’s efforts to abide by it have drawn support among opponents of abortion. “The unborn child should be recognized as a separate person,” said Joe Pojman, executive director of Texas Alliance for Life. He added, “I would say that, even if she were brain-dead, I would favor keeping treatments going to allow the child to continue to survive, with the hope the child could be delivered alive.”

 

That argument raises a good point. However, even if the hospital keeps this poor shell of a woman alive to the point of fetal viability, there’s no guarantee that they will be able to deliver a healthy baby, or that the fetus is currently being harmed by the treatment being used to keep the shell that was once its mother alive. Will the baby be brain damaged itself? Only time will tell. If the child grows up retarded or severely physically handicapped, then we will know that the law should have restrictions and should only be applied if the fetus is in the last trimester of its existence and not the first and second trimesters.

 

Now comes three tricky questions. Who will care for the newborn baby? Can the father of the child do it without the assistance from the  mother of the child? And who is going to pay the mounting medical bills from this situation?

 

If Marlise didn’t already have a Living Will when she was tragically and suddenly struck down, or if the fetus in question was far closer to viability than it was at the time that this happened, many will see the logic and humanity in keeping her alive long enough for the fetus to be ready to be born. But if the baby is born as a normal baby, many others will see the wisdom of keeping the baby’s mother’s body functioning.

 

I do not believe that the hospital ought to defer to the wishes of the family in the end. In my opinion, cases like this are not monumentally cruel and inhuman.  Further, I don’t believe that her dignity as a human being is abused although I do appreciate the suffering that her family has no doubt been living through for the past two months.

 

It is unlikely that this law, first adopted in 1989, will be changed any time soon but I think it should be looked at more carefully so that all questions pertaining to its direction can be answered to everyone’s satisfaction.

 

  

If you were a judge and had to make a decision in this difficult situation, how would you rule? Please feel free to express your opinion at the bottom of this article.