Women Beware: Your Living Will May Be Ignored, and Your Family’s Finances Devastated

Posted on January 13, 2014

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If you are even one day pregnant and suffer a medical catastrophe that renders you brain-dead, your wishes, even  in a written living will, might not be honored.  Depending on where you live (or are hospitalized), your empty husk could be kept marginally alive, at your family’s great and unwilling expense, until your fetus can be delivered – even if that fetus might be gravely damaged due to the same circumstances that killed you.  And then, if the child survives, who will shoulder the financial and emotional burdens of caring for him?  Your family.

It’s one thing if you and your family choose to try to preserve the child’s life at all costs to yourselves.  It’s quite another if you and your family are forced against your will, especially when such a catastrophe comes in the early stages of pregnancy – a time when shocks to the fetus are especially damaging, and (ironically enough) abortion by choice is actually legal.*

Just such a catastrophe befell Marlise Munoz of Texas.  As The New York Times explains, she was just 14 weeks pregnant when she suffered a suspected pulmonary embolism that killed her.  Her body was too long starved of oxygen; her brain is dead, her fetus likely compromised.  Her parents and husband agreed that she would have wanted to be taken off life support.  The hospital refused, citing Texas law that life support measures cannot be withdrawn from a pregnant woman (actually it is a pregnant corpse).

Aside from the monstrosity of it, there is so much wrong with this.

To keep a corpse alive against the dead person’s wishes, against the family’s wishes, and at the family’s expense is unconscionable.  As Sarah Wickline estimates in MedPage Today, the cost of keeping Ms. Munoz on life support until the baby could be delivered at about 30 weeks could run “anywhere from $439,500 to $984,500.”  And guess what?  The family – which expressly did not want any of this expensive treatment – is not only emotionally traumatized, but also on the hook for the bill.  If they are lucky, insurance will help pay, but as a general rule insurance will not pay for medical treatments on a corpse.

The Commerce Clause of our Constitution does not allow the government to force its citizens to engage in commerce; it only provides for regulation of commerce which does occur.  In this country, health care is very definitely a commercial venture.   It is well established that patients have the right to refuse care.  Patients have the right to express their wishes in an Advance Medical Directive (living will).  Their families have the right to choose to “pull the plug” in hopeless cases.  Brain death is as hopeless as it gets.   So why is it the law in so many states** that the survivors of a dead pregnant woman must engage in medical commerce?

It’s possible that the hospital is misinterpreting the law in the Munoz case.  Reports the New York Times:

“If she is dead, I don’t see how she can be a patient, and I don’t see how we can be talking about treatment options for her,” said Thomas W. Mayo, an expert on health care law and bioethics at the Southern Methodist University law school in Dallas.

Medical ethicist Laurence McCullogh agrees, telling the Huffington Post:

If she is brain-dead, then “you have a pregnancy in a cadaver,” McCullough said. “Then the law no longer applies.” If Munoz is dead, and the hospital wishes to continue ventilation to save her fetus, that is considered a medical experiment, and should undergo careful consideration by a committee of experts, McCullough said.

Compare Mrs. Munoz’ case with that of Jahi McMath, the California teen who died after a routine tonsillectomy.  While her family has fought to keep her on life support, doctors have been practically shooing her off of it,  repeatedly explaining that brain death is death, that the body will inevitably deteriorate, that life support measures cannot maintain the “illusion” of life indefinitely, and the hospital would not allow its doctors to perform any medical procedures on a dead person.

Ironic, isn’t it, that had Marlise Munoz desired an abortion at 14 weeks, she could have arranged it at will – even for an apparently healthy fetus?  But  once she was dead, and her fetus quite likely severely damaged by the same oxygen deprivation that killed her, the state  – or the hospital – suddenly had the power to force expensive medical decisions and lifelong, soul-crushing consequences onto her unwilling family.

Now, I can imagine what some readers are thinking:  “We don’t know that the baby is compromised… this is the last manifestation of the love the couple shared… a living reminder of his wife… a bright spot born of tragedy!”  That’s all very romantic, but you are not the ones being forced to keep your dead wife or daughter on a ventilator at great expense.  You are not the ones facing astronomical neo-natal ICU costs.  You are not the ones facing the uncertainty of a child who may never be born, may be born only to die soon after, or may live a severely impaired life.  You are not Mrs. Munoz’ father, who  told the New York Times:  “All she is, is a host for a fetus… They’re prolonging our agony… She felt… like a mannequin.”  Or her mother:  “It’s not a matter of pro-choice and pro-life. It’s about a matter of our daughter’s wishes not being honored by the state of Texas.”

In short, you don’t get to decide, and neither should the state, or the hospital.

It’s bad enough that a family cannot make their own life-and-death decisions about their loved one.  It’s bad enough that they cannot take her body and bury it and begin to properly mourn.  It’s worse that they cannot make their own heart-wrenching decision about the fate of the pregnancy.  Such decisions are not made lightly; they are already losing a wife and mother; they have another now-motherless child who needs them.

If the state, or the hospital, wants to take life-and-death decisions out of a family’s hands and invalidate living wills for pregnant women,  let THEM shoulder the devastating costs, even if they can never shoulder the devastating emotions.

*Abortion on demand is legal until 24 weeks, although Texas makes it nearly impossible after 20 weeks.

**  As of August 2012, the Center for Women Policy Studies published a paper which indicated the following status for the states:

1)  States which automatically invalidate a pregnant woman’s living will. (13)

AL, CT, ID, IN, KS, KY, MI, MO, SC, TX, UT, WA, WI   (CT not included in the paper, confirmed separately)

2)  States which use the Uniform Rights of the Terminally Ill model that a woman “be given life sustaining treatment if she is pregnant and if it is ‘probable’ that the fetus will develop to the point of ‘live birth.'”  Definitions for “probable” are vague and rife with pitfalls.  (14)

AK, AZ, AR, IL, IA, MT, NE, NV, NH, ND, OH, PA, RI, SD

3)  States which use a “viability standard” to determine whether to maintain maternal life support for the sake of the fetus (this varies between states).  (4)

CO, DE, FL, GA

4)  States whose law is silent on the matter of pregnancy in terminal patients or brain-dead women.  (14 + DC)

CA, HI, LA, ME, MA, MS, NM, NY, NC, OR, TN, VA, WV, WY  +  DC

5)  States which expressly allow a woman to state her wishes in a living will, and will honor them.  (5)

MD, MN, NJ, OK, VT

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