The case of the Texas woman who has been declared brain-dead, but who is being kept on life-support systems against her husband's wishes because she is pregnant, has become more complicated, with attorneys for the husband saying the fetus shows abnormalities.
Hospital officials say a Texas law requires them to keep the woman on life support to keep the baby alive. Lawyers for the husband say that is a misapplication of the law. The case is set to go before a Texas court Friday.
Though in some ways similar to the recent case of Jahi McMath – the Oakland, Calif., teen who was declared brain-dead – the Texas case explores different legal territory. For one, Jahi's parents wanted to keep her on a ventilator; Erick Munoz is suing to take his wife off life support.
But more significantly, the Texas case centers on the status of the fetus. It raises legal questions about whether a hospital can ignore the wishes of a dead woman's family in an attempt to bring a fetus to term. And now, in the wake of the new information, it raises ethical questions about whether the fetus's abnormalities should play any role in the judge's decision.
Marlise Munoz collapsed on Nov. 26 and was declared brain-dead. Mr. Munoz and his wife's family asked for her to be removed from life support, arguing that there was no way to know how long the fetus, then 14 weeks old, had been deprived of oxygen or what state it would be in. Hospital officials told the Munoz family that Mrs. Munoz would have to be kept on life support until the fetus reached 24 to 26 weeks.
Now that the fetus is 22 weeks old, doctors say they are closer to making a decision about its viability.
Lawyers of the Munoz family did not mention whether the fetus was viable but did offer information that could influence the judge Friday.
"According to the medical records we have been provided, the fetus is distinctly abnormal," attorneys Heather King and Jessica Hall Janicek said in a statement Wednesday. They cited extreme deformation of lower limbs and brain abnormalities.
The Texas Advance Directives Act invoked by the hospital reads: "A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient." But two experts who helped draft the legislation told the Associated Press that a brain-dead patient's case wouldn't be covered by the law.
"This patient is neither terminally nor irreversibly ill," Robert Fine, clinical director of the office of clinical ethics and palliative care for Baylor Health Care System, told AP. "Under Texas law, this patient is legally dead."
Some observers have questioned the hospital's judgment.
“This new development highlights the tortured nature of the hospital's actions,” says Areva Martin, managing partner of the law firm Martin & Martin in Los Angeles. “As medical professionals, they knew that this was the likely outcome given that Marlise is brain-dead."
She questions the hospital's motives. "If the hospital's true intent was to obtain a judicial determination [about the law], they could have gone into court months ago to seek an opinion. Their failure to do so suggests an intent on their part to delay the process to allow the fetus to reach 24 or 26 weeks to bolster their claim that the fetus has some kinds of rights. This is a disingenuous way to go around the Roe v. Wade decision decision and to abrogate the constitutional rights of this couple.”
In this case, the decision is clearly in the family's hands, says Laurie Levenson, chair of ethical advocacy at Loyola Law School in Los Angeles.
“Legally, this family has the right to make a decision as to what to do with their deceased loved one,” she says. “The new information about the fetus indicates why this is not an irrational decision by the family. They are not callously disregarding this fetus. They are embracing and respecting Marlise's legal interests.”
But Wendy Patrick, a prosecutor and ordained minister in San Diego, suggests that the baby's abnormalities don't make its life less valuable.
“If you look at the merits on both sides, some would argue: Why would this change the basics of the sanctity-of-life argument?” she asks. “This is bringing up a key point for the faith community that all fetuses were created in the image of God, so who is to say anything about so-called abnormalities?"
"Even non-believers recognize that deformed babies are born all over the world all the time and with terrible flaws," she says. "Some lead productive lives and become spokespeople for the disabilities they have. We care for the disabled community, so does this change the equation? Many argue it shouldn’t.”