There are two cases involving "brain death" in the news. Both have been covered here.
Jahi McMath
The first is Jahi McMath, whose family sued to force Children's Hospital to continue her "life support" and otherwise treat her as a living–rather than a dead–patient. That case settled with the family removing Jahi from the hospital still on a ventilator. We await further developments.
Marlise Munuz
The second case involves a pregnant Texas woman named Marlise Munuz, who apparently was declared brain dead. But because she was pregnant, the hospital refused to stop "life support," as apparently required by Texas law. Here is the relevant statute:
A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.
Erick Munuz has now sued to force the hospital to remove the life support. From the Courthouse News story:
Erick Munoz sued John Peter Smith Hospital as husband and next friend of "Marlise Munoz, deceased," in Tarrant County Court. He wants the Fort Worth hospital ordered to stop administering life-sustaining care. The couple had been married for less than a year when Erick found his wife unconscious on the kitchen floor on Nov. 13 last year. She was 14 weeks pregnant with their second child
"Erick and Marlise worked as paramedics during their marriage, and thus were knowledgeable of and had personally witnessed injuries that resulted in death, including brain death," the complaint states. "Erick and Marlise frequently discussed their requests, beliefs and desires with each other, and expressed clearly to each other, family members and friends, their respective desires not to be resuscitated should either of them become brain dead."
I am not sure how this will go. If she was declared dead, under Texas law a "brain dead" person is dead, and so the maintenance wouldn't technically be "life support," as used in the earlier quoted statute. Nor, I suppose, would Marlise be considered a "patient."
There is more to consider: I think how one thinks about this case depends on the value one accords the life of the fetus, because removing life support from Marlise will doom her unborn child.
This raises the question of whether she would have wanted life support removed if she knew it would also take her child's life. Obviously I don't know, but many mothers thinking about such a circumstance would not.
Then there is this: I think that the technical medical support currently applied to Marlise could be deemed, as the hospital has apparently argued, actually for the benefit of the unborn child since it maintains an environment where the gestating baby can continue to mature to the point that a caesarian could be performed. Since the fetus is at 21 weeks, we are almost to that point.
And what if Texas has a fetal homicide law, which treats the intentional killing of a fetus as a crime except in cases of abortion? Ai, yi, yi!
I am willing to bet this is a matter of first impression for the courts. I hope whatever judges hear this case have the wisdom of Solomon.
If it were me deciding, I would give every legal benefit of the doubt to allowing an innocent child to be born. But that and $2 will buy a small cup of Starbuck's coffee.
Contact: Wesley J. Smith, National Review
