Dead Women Are Not Incubators

By Naomi Scheinerman 

On November 26, 2013, Marlise Munoz suffered a pulmonary embolism – a blood clot in the lung – in her Fort Worth, Texas home. Her husband, Erick Munoz, a paramedic, found her on the kitchen floor where she had collapsed and lay unconscious for over an hour. He administered CPR and called an ambulance, which rushed her to John Peter Smith Hospital. The doctors put her on a ventilator and restored her heartbeat, but soon determined that she had suffered “irreversible cessation of all spontaneous brain function,” or brain death. Her husband requested that she be taken off the ventilator, but the doctors refused. Marlise was 14-weeks pregnant and the Texas Advance Directs Act stipulates, “A person may not withdraw or withhold life-sustaining treatment under this chapter from a pregnant patient.” Erick, Marlise’s parents, and several medical and legal experts agreed that the state law should not apply because the ventilator was not “life-sustaining” because brain death is a legally binding definition of death accepted by all 50 states. Finally, after weeks of appeal, on Friday, January 24, Tarrant County District Judge R.H. Wallace ordered the hospital to disconnect Munoz from her ventilator.

Now, why discuss brain death in a reproductive health column?

Here are some of the many questions one should ask about this case: what is the point of an advanced directive if state laws can override them? Can there be any exceptions to our understanding of brain death? Should it matter how long the woman has been pregnant? Does the mandate apply to all pregnant women, regardless of their neurologic condition? I would like to focus on the last question. The short answer is this case is not about defining death as brain death, it’s defining a fetus as a living human being. At the time that Marlise Munoz became brain dead, she was 14-weeks pregnant. Texas’s laws regarding abortions are (coincidentally?) some of the more restrictive in the United States.

In addition, there is a sad irony in this case: the law preserves fetal life to keep a dead woman hooked up to a ventilator at the expense of medical equipment. However, this only fosters a potential individual whose existence will be replete with suffering and sadness. Because Munoz’s fetus was without its mother’s properly circulating blood and therefore oxygen, doctors and lawyers speculated that there would be severe health ramifications. On January 22, Munoz’s lawyers declared the fetus “distinctly abnormal.” For example, gender can normally be determined between 18 and 20 weeks and at 22 weeks, Munoz’s fetus’s “lower extremities [were] deformed to the extent that the gender cannot be determined.” Texan law, as such, was serving to not only keep a dead woman on a ventilator, but to create a human being whose chance at a healthy happy life was completely lost as a result of the law that tried to insure its existence.

One may fairly ask: What if the woman entered persistent vegetative state and the fetus was 30 weeks? According to NPR, the “authors of the Texas Advance Directives Act intended to keep a pregnant woman who was in a persistent vegetative state on a ventilator until she could deliver.” Turns out the authors of the law never intended for the hospital to interpret keeping a dead woman “alive” in order to serve as an incubator for the fetus.

Naomi Scheinerman is a Research Assistant at The Hastings Center. She graduated Phi Beta Kappa, with high honors and in distinction from the University of Michigan in Ann Arbor, where she received bachelor’s degrees in philosophy, political science, and Hebrew and Jewish Cultural Studies. She contributes a bi-weekly column on reproductive health.