In November, 33-year-old Texas woman Marlise Munoz collapsed at her Fort Worth home after suffering a suspected blood clot in her lungs. She was later declared brain dead.
When the hospital determined that she was 14 weeks pregnant, it continued to support her biological life under a Texas law that prohibits the withdrawal of life support from a pregnant patient.
Marlise’s body is now 21 weeks pregnant; at 24 weeks, doctors will attempt to determine whether the fetus can function independently and decide how to proceed.
But is it ethical to keep a brain dead pregnant woman alive to sustain the pregnancy? It’s a tough question to answer, even for those with strong views on abortion, withdrawal of treatment and advance care planning.
Similar laws prevail in roughly half the states of the US, albeit in variable form. The Texas law is among the most restrictive: regardless of the progression of the pregnancy, a woman must remain on life-sustaining treatment until she gives birth.
There is considerable variation elsewhere, with factors including the probability that the fetus will develop to the point of birth, and the existence of advance wishes of the mother, playing variable limiting roles. Some states have no relevant legislation, while a small number allow women to state positive wishes about pregnancy in their advance care plans.
Australian jurisdictions have no such pregnancy-triggered restrictions for advanced care planning.
Marlise’s husband and parents have objected to continued life support on the basis of Marlise’s advance wishes that her life not be sustained in such circumstances, and that her body is now being utilised as an incubator.
The hospital considers that it is upholding existing law, but this has been strongly challenged. The relevant legislation defines life-sustaining treatment as that which “sustains the life of a patient and without which the patient will die”.
But by definition, life-sustaining treatment cannot be provided to someone who is dead, and Marlise’s parents maintain that they were told she was brain dead some weeks ago.
Her husband has since lodged a lawsuit against the hospital in order to have treatment removed.
The ethical dilemma in this case arises from the complex interrelation of distinct issues such as abortion, withdrawal of treatment and advance care planning.
To what extent, for example, should the now well-recognised right to refuse treatment in advance, and the right for families to make decisions for loved ones who have lost decision-making capacity, be modified by the rights of the developing fetus?
And how do we balance the interests of the state in preserving the life of the fetus against those of the father, who may be forced to care for a new infant in the absence of its mother, and with possibly significant medical problems?
The question of fetal status is often overlooked, or presupposed, when pro-abortion advocates invoke women’s rights over their bodily integrity as the only consideration relevant to abortion. Given what abortion amounts to, it cannot be ethically or legally legitimate in the absence of an account that explains why fetuses do not deserve the same moral consideration as children and adults.
The legislatures of states such as Texas that insist on sustaining the life of the severely compromised mother, to maximise the chances that the fetus survives, reflect the belief that no such account holds water. This, in turn, reflects the greater religious influence on politics in these jurisdictions than in Australia, where a number of states and territories have liberalised abortion law.
Some people may see the recently introduced Crimes Amendment (Zoe’s law) Bill 2013 in New South Wales as a threat to abortion rights. The Bill would criminalise grievous bodily harm to a fetus of 20 weeks gestation or more by recognising the fetus as a legal person.
However, similar 1996 legislation in Queensland, albeit not explicitly bestowing legal personhood on the fetus, has not impeded access to abortion. And the Bill explicitly exempts “anything done by or with the consent of the pregnant woman that causes the destruction of or harm to a fetus”.
Life of the fetus
There are precedents for maintaining the biological life of a brain-dead mother to sustain the pregnancy. Over 30 years ago, a 27-year-old woman who was 22 weeks pregnant was sustained, albeit in a brain-dead state, for nine weeks before the delivery of a normal, healthy baby.
Interestingly, the ethicists reporting on the case stated that maternal autonomy ceased with her death and that even a refusal expressed before death should not override the obligation to save endangered fetal life.
If Marlise’s husband’s lawsuit is successful and her life-support is switched off, it would mean that not even the restrictive law in Texas is sufficient to provide the protection for the fetus that some Texans and others would like.
There have been calls for women to receive better information about what their state advance care planning laws stipulate in relation to pregnancy. But the more fundamental need is to continue working towards greater coherence, across national and international jurisdictions, on how we should value the life of the fetus.