If You Get Pregnant in the State of Texas, You're Having the Baby -- Even if You're Dead

The stars at night are not so big and bright for women in Texas these days.
Publish date:
January 6, 2014
death, pregnancy, Texas, abortion rights, post-mortem birth, marlise munoz

Here's some recent horrifying news from my beloved home state of Texas:

Although that headline is technically incorrect. It's actually an erroneous interpretation of a Texas law that is prohibiting an already-dead woman from being taken off life support -- against the wishes of her husband and family, because she just so happened to be 14 weeks pregnant.

Pregnant Fort Worth resident Marlise Muñoz suffered a suspected pulmonary embolism at her home last November 26. While doctors were able to restart her heart, she was deprived of oxygen for too long - some reports say it was close to an hour. She was eventually pronounced brain dead, at which point her family attempted to carry out her wishes to not be kept alive by artificial support.

Except Texas ain't having it. Doctors at John Peter Smith Hospital in Tarrant County where Muñoz was taken are refusing to honor the family's wishes, citing a little-known section of the Texas Health and Safety Code, which reads:

"Section 166.049 Pregnant Patients. A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient."

The problem here is that Muñoz is no longer a "patient" -- she's dead. Keeping her alive against her family's wishes is reducing her to nothing more than a storage container and prolonging the agony her family (including her 14-month-old son) are experiencing.

What's more, at least three experts interviewed by the Associated Press (including one who helped draft the Texas law) have stated that they believe the hospital is seriously misinterpreting the law:

“This patient is neither terminally nor irreversibly ill,” said Dr. Robert Fine, clinical director of the office of clinical ethics and palliative care for Baylor Health Care System. “Under Texas law, this patient is legally dead.”

Brain dead really means dead. Brain death is the complete cessation of all functions of the brain. It does not mean the person is in a coma, and it does not mean they are in a vegetative state like Terri Schiavo. It's an important distinction. Persons who meet the criteria of brain death do not ever wake up in any sort of miracle scenario.

If you are a pragmatic sort, you're probably already asking yourself: who pays for all this? As Morgan Guyton, associate pastor of Burke United Methodist Church in Burke, Virginia points out over at the Huffington Post:

"Nothing in chapter 166 provides for the state of Texas to pick up the bill when it requires the family of a pregnant patient to keep her alive until the fetus can be delivered. It costs about $4000 to run life support machines for one person each day -- plus a ton of other hospital fees."

If you follow the logic here, it stands to reason that the deceased woman's insurance wouldn't pick up the bill either, as she is technically deceased. That's what brain dead folks are -- they're sadly, horrifically, tragically dead. The astronomical cost of care provided against the family's wishes could very well fall right onto the family themselves.

Muñoz did not have a signed advance health care directive, but even if she did, it wouldn't matter. The fine print on the form actually states:

"I understand under Texas law this directive has no effect if I have been diagnosed as pregnant."

So if you are woman in Texas and have the misfortune to become pregnant, guess what? You're having that damn baby -- whether you want to or not, and whether you are dead or alive. How you or your family personally feel about it is of no concern to the state.

But Texas is not alone! At least 12 other states have similar laws that reduce the end-of-life wishes of women to an afterthought, simply because they have been 'diagnosed with pregnancy'. (A number of state's laws take the viability of the fetus into account, Texas' law does not.)

The Marlise Muñoz story broke right before Christmas, but I waited to write it up, as all the facts weren't yet clear -- and I was sure some judge or doctor would realize the inherent folly and intervene, allowing Muñoz's family to follow her wishes.

No such luck. Muñoz's fetus is now coming up on being 20 weeks of age -- and her husband says doctors have told him they may have more information on possible viability at around 24 weeks. So for another month, her family waits.

Cases involving babies "born" to brain-dead mothers are extremely rare. A study posted in the BMC Medical Journal found just 30 cases dating back to 1982. Of those 30 cases, only 12 viable infants were born and survived the neonatal period.

Muñoz's fetus was deprived of oxygen for just as long as the she was -- not to mention being subjected to the same electrical shocks and various drugs used in the fight to save the her life. As the BMC study states, a fetus born before 24 weeks of gestation has a limited chance of survival. One could argue that the body of a brain dead patient is not the optimal setting for a 14-week-old fetus to grow and thrive.

There are cases where a brain-dead woman was kept alive via artificial means and her baby has made it to term -- such as this case in May of last year when twins were delivered after the mother had been brain dead for over a month, and this case in November where a baby was successfully delivered via C-section 92 days after the brain dead mother was placed on a ventilator.

In both cases, these patient's families had agreed to try to keep their loved one's bodies alive with ventilators and machines so her baby might survive. Marlise Muñoz's family has made a different choice -- but a choice that should be honored without question.

So what exactly is behind this hospital's refusal to follow the wishes of their patient's family? You don't have to look back very far to see the genesis of the anti-choice war on women in Texas -- and this case is just another goose step in the march toward stripping women of their right to bodily autonomy (also commonly known as basic human dignity.)

Texas: Treating women like Tupperware since at least mid-2013.

I'm on Twitter: @IveyAlison

* All photos taken by me on my travels to Texas

UPDATE 1/9/2014: The family of Marlise Muñoz is preparing to take legal action.

UPDATE 1/24/2014, 4:17 p.m CST: A Texas judge has sided with the family of Marlise Muñoz and ordered JPS Hospital to declare the pregnant woman dead and withdraw life support by 5 p.m. CST Monday, January 27, 2014.

UPDATE 1/26/2014, 12:30 a.m. CST: Heather King and Jessica Janicek, attorneys for Marlise's husband Erick Muñoz, say life support was withdrawn at 11:30 a.m CST and have issued the following statement:

"The Muñoz and Machado families will now proceed with the somber task of laying Marlise Muñoz’s body to rest, and grieving over the great loss that has been suffered. May Marlise Muñoz finally rest in peace, and her family find the strength to complete what has been an unbearably long and arduous journey."