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John Peter Smith Hospital in Fort Worth.

Freethought San Marcos: A column

When 33-year old Marlise Munoz, a Fort Worth mother of a young child, suffered an apparent brain aneurysm in November, she was 14 weeks pregnant.  The hospital told the family that she was brain dead, the standard for determining death in Texas (“irreversible cessation of all spontaneous brain function”) and most of the rest of the country.  But for her and her family, this was not the end because she had been placed on a ventilator when she arrived at John Peter Smith Hospital, and, because of her pregnancy, the hospital declined to remove her from the machine that kept her heart beating.

The legal reasons are two-fold.  Texas law makes it a homicide to intentionally or knowingly cause the death of an individual, including “an unborn child at every stage of gestation from fertilization until birth.”  Hospital officials fear that, if the machines are turned off, the Tarrant County District Attorney would charge those responsible for that action with murder of the fetus.

The second reason rests on a faulty definition found in the Texas Health & Safety Code.  All adults in Texas may make their end-of-life medical decisions in advance of need by completing a Directive to Physicians (though preferences expressed orally, in the absence of a written directive, can be recognized by courts if the preferences are sufficiently clear, which is the situation with Marlise Munoz).

The Directive to Physicians law, passed originally in 1977, can be found in Chapter 166, Texas Health & Safety Code.  The law allows people to decide whether extraordinary means should be used to keep them alive and under what conditions such life-sustaining treatment should be provided.  But the law provides this important definition:

“Life-sustaining treatment” means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die.  The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration.

Unfortunately, the Legislature made no distinction between the use of “mechanical breathing machines” when a person is brain dead and when a person’s brain continues to function normally, or when the person might recover to a satisfactory neurological state.  When a person is brain dead, it is simply a misnomer to call mechanical breathing machines “life-sustaining treatment.”  In such a case, life is not being sustained.  The heart is simply kept beating.  But such important distinctions seem beyond the ken of most legislators.

Clearly, the hospital could make a case that a mechanical breathing machine is not sustaining the life of Marlise Munoz.  Her life has ended.  She is being used as an incubator for a fetus whose spinal cord has not yet attached to the brain, something that will happen at around 28 weeks in a normal pregnancy.  But this pregnancy is anything but normal.  Her husband, an EMT (just as she was) believes that Marlise Munoz’s brain was without oxygen for at least an hour.  If so, this may have deprived the developing brain of the fetus of oxygen as well.  But the law in Texas does not take into account the long-term viability of such a fetus.

Because of these two laws – the law on homicide and the Health & Safety Code definition of “life-sustaining treatment” – officials at John Peter Smith Hospital refuse to remove the pregnant woman from a mechanical breathing machine in spite of the fact that this was her wish and it is the wish of her family members.  Instead, the fetus growing in her, which is not yet viable, is given more rights by the Legislature than are given to Marlise Munoz.

The hospital could seek a court interpretation of these Texas statutes, but to date it has chosen not to do so.  As I write, the fetus has entered its 21st week of gestation, but because of privacy concerns, the public does not know anything about its condition or the possibly deteriorating condition of Marie Munoz’s dead body.

But other personal and public policy considerations apply here, some of which may have greater moral weight than keeping a questionable fetus growing inside the body of a dead woman.  For instance, a brain dead body might be used as a donor to help keep dozens of people alive or living improved lives.  When that is weighed against the possibility – and it is only a possibility – of bringing a 21-week fetus to term and delivered by caesarian, some people might opt for saving many people over saving one potential life, whose saving is not in any way assured.

Such uses of a brain dead body (sometimes referred to in the literature as a “neomort” – see chapter 1 in Perspectives on Death and Dying by Gere Fulton and Eileen Metress) that is mechanically sustained are not limited to developing a fetus to term or viability.  There have been reported cases of using a neomort to cleanse the blood of someone with liver failure by running the blood through the neomort’s liver, testing blood substitutes, practicing intubation, and testing artificial heart prototypes.

Researchers have suggested other uses for neomorts:  testing drugs, medical procedures, and diagnostic instruments; testing proposed “cures for illnesses which would first be induced in the neomort”; testing antidotes for poisons; evaluating new cancer treatments; testing vaccines; using neomorts as organ and tissue banks; using neomorts as blood donors, whose blood supply would be constantly replenished; and others that can be imagined.

One problem with the use of neomorts is the cost of maintaining each body for long periods of time.  The costs 25 years ago were reported to be about $3,500 per day in one pregnancy case.  The cost of maintaining the 13-year old brain dead girl from Oakland is reported to be $7,500 per day, and that case did not have the complication of pregnancy.  However, after three weeks, the girl’s body is reported to have begun deteriorating as her brain has started liquifying.  Without insurance to pay the cost (insurance pays only for medical treatment, not thoughtless state laws), who would pay?  Undoubtedly, if the family can’t pay the costs, the health care system and other rate-payers will bear the costs through higher premiums to make up the losses incurred by hospitals and other care facilities.

Maintaining neomorts for whatever purpose – in this case, to bring a fetus to term or near-term – is immensely more complicated than the news articles have suggested, raising ethical, moral, legal, financial, religious, medical, personal, familial, and public policy questions that have no simple answers in spite of our desires to make them simple.  Without question, to use a body as a neomort would require the advance consent of the person whose body is used in this way and/or the consent of the next of kin.  But this is not the case with the body of Marlise Munoz.


Now, the so-called right-to-life community has joined in to make the Munoz family’s tragedy even worse by holding a rally outside the hospital where the body of Marlise Munoz incubates the fetus.  News reports continue to claim, erroneously, that Marlise Munoz is “being kept alive” (see the Fort Worth Star-Telegram, January 12), while the newspaper reports that signs at the rally refer to the fetus as a baby.  The ralliers claim to be praying for “Baby Munoz” apparently based on their religious belief that there is a supernatural God that will save the fetus if they pray to that God.  I guess they don’t think that their God, who is supposed to be all-knowing, is already aware of this tragedy.


The Star-Telegram also reports that Pastor Stephen Broden, of Fair Park Bible Fellowship Church in Dallas, said, “We must save this baby. It is a person, guaranteed protection under the Constitution.”   He doesn’t say where in the Constitution that fetuses are declared persons and afforded the protection of that document and our laws.
But it is the Roman Catholic Church that has been most responsible for assuring that the Texas Legislature passes laws that follow its church doctrine, rather than medical science.  The last major revision of the Directive to Physicians law in Texas was lobbied heavily by the church.  In fact, nothing could be passed through the Legislature without the church’s blessing.  When public policy is made on the basis of church doctrine, rather than science and reasoning, tragedies such as the one inflicting great grief on the Munoz family will persist.
A recent example of the danger of basing public policy on church doctrine is found in the way a Catholic hospital treated (or failed to treat) a pregnant woman in medical distress.  In December 2010, Tamesha Means was rushed to the only hospital in her county in Michigan – a Catholic hospital – when her water broke after 18 weeks of pregnancy.  Because of directives written by the United States Conference of Bishops, the hospital sent her home, though she was in excruciating pain and was at risk of serious harm to her health.  This happened a second time.
On her third trip to the hospital she was in “extreme distress and with an infection,” according to a lawsuit filed last month on her behalf.  The hospital, nevertheless, was preparing to discharge her when she began to deliver the fetus.  Only after the miscarriage did the Mercy Health Partners hospital provide appropriate medical care.  Hospital personnel told Tamesha Means that she was treated the way she was because of the hospital’s Catholic affiliation and the binding directives issued by the bishops.  In a non-Catholic hospital, Means would have been told on her first visit that terminating her pregnancy was the safest medical course of action for someone in her condition.
All Catholic-affiliated hospitals must adhere to the Ethical and Religious Directives for Catholic Care Services.  The Directives prohibit termination of a pregnancy before the fetus is viable.  Viability is small for a fetus delivered before 24 weeks, and many neonatal departments will not provide intensive care for a fetus born before 26 weeks.  The widely-accepted standard is 28 weeks, but 90% survive at 26 weeks if provided adequate neonatal care, though developmental complications are often a problem for such significantly premature births.
The bishop’s Directives prohibit pregnancy termination under virtually all conditions.  The life or health of the prospective mother does not matter, nor does the condition of the fetus, which is why Tamesha Means did not receive the accepted standard of care from Mercy Health Partners hospital.
This is what happens when we allow religious beliefs to control healthcare public policy, unless those beliefs match what we know from medical science and widely-accepted non-religious standards of decency and medical ethics.  It should be prohibited by law for any hospital that receives public money for providing medical services (whether through Medicaid, Medicare, the VA, or any other public funding source) to follow any medical standard other than what is considered medically appropriate by the medical community.
So long as we allow religious groups, such as the Catholic bishops and religious anti-abortion crusaders, to control public policy, we will continue to have to deal with the effects of religiously-determined laws and negligent hospital practices that endanger the privacy rights of all women in the first instance, and their very lives in the latter case.  Public policy should never be based on religious beliefs; otherwise, the rights of all people will be in danger.
© Lamar W. Hankins, Freethought San Marcos

LAMAR W. HANKINS is a former San Marcos city attorney.

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