Depending on your level of engagement with the news, you may have heard about the woman in Texas being kept on life support against her husband’s and parents’ wishes. The woman, Marlise Munoz, suffered a pulmonary embolism (a blood clot in her lungs), back in late November, causing her brain to be deprived of oxygen for some sustained period of time, ultimately resulting in brain death. What may have been a fairly easy and uncontroversial decision for the family to remove her from life support was, however, complicated by the fact that Ms. Munoz was 14 weeks pregnant at the time of the incident. When her family instructed the hospital to discontinue life support treatment, the hospital refused, citing a Texas law that prohibits medical officials from cutting off life support to a pregnant patient, regardless of instructions received from the family members, or even from the woman herself.
You may be wondering what would happen if this scenario were to occur in Colorado. A lot of times, when controversial scenarios such as this one grab the headlines, the media portrays the underlying law at issue as the work of extremists in a state legislature. That often turns out not to be the case, however. We just saw an example of this with Florida’s “Stand Your Ground” law, which became a source of controversy after the Trayvon Martin shooting. Much of the coverage surrounding that incident implied that Florida was unusual in allowing its citizens to kill in self-defense without first making an effort to retreat. In fact, Florida is arguably in the mainstream. More than 30 states have expanded the right to use a firearm for self-defense outside the home, with no duty to retreat.
And so it is with this Texas law concerning continued life support for pregnant women. Far from being an outlier, Texas is one of 37 states that require a woman to be kept on life support if she is pregnant, regardless of instructions that she may have left to the contrary. The laws do vary from state to state, and Texas’s version is one of the strictest in the nation. It requires that, regardless of the progression and likely outcome of the pregnancy, a woman must continue to receive life-sustaining treatment until the pregnancy ends.
Other states base the continuation of life support on the probability the pregnancy will continue to the point of “live birth” or, in Colorado’s case, on the viability of the fetus. Specifically, Colorado’s “Medical Treatment Decision Act” (CRS 15-18-104(2)) states as follows:
In the case of a declaration [concerning medical treatment] of a qualified patient known to the attending physician to be pregnant, a medical evaluation shall be made as to whether the fetus is viable. If the fetus is viable, the declaration shall be given no force or effect until the patient is no longer pregnant.
In other words, even if you execute an advance directive (popularly known as a “living will”) stating that you want life support discontinued in certain instances, your doctors are forbidden from following that instruction if you are pregnant with a fetus they deem to be viable.
Is there an exception if I wouldn’t want to be kept alive?
On Sunday, a Texas state court ordered the hospital to follow the family’s wishes and discontinue Ms. Munoz’s life support. Although the hospital concurred with the family’s assertion that the fetus was not viable, that was not the basis for the court’s decision. Instead, the court determined that, because she was brain dead, Ms. Munoz was legally dead, and the law concerning life support did not apply to her. In other words, if Ms. Munoz still had brain activity, the hospital would likely have prevailed in its effort to keep her on life support, despite her family’s request that it be discontinued and despite the consensus that the fetus was not viable.
Although the court’s decision has brought closure to this particular tragedy, it is unlikely to be an ending that many people find satisfying. For supporters of these laws, if a pregnancy can be extended, it should be, regardless of the mother’s prognosis. Opponents of these laws, on the other hand, contend that they dehumanize women who have already suffered a life-altering tragedy, turning them into incubators and taking away rights they would have had if they were conscious.
Is there a way for you to direct a different result if you disagree with this outcome? Surprisingly no, there are no exceptions. A small number of states have explicitly authorized women to create advance directives that specify what should happen if they are pregnant. Colorado is not one of them. Had she been a Colorado resident, the lack of viability of the fetus would have allowed Ms. Munoz’s family to direct remove her from life support. Small changes to the facts of this particular case, however, could lead to dramatically different results.
Do you have strong feelings about whether doctors should use extraordinary measures to keep you alive if you suffer a serious accident? Have you put a plan in place to let people know what those feelings are? Request my guide to estate planning to learn what your options are and how to implement them. It’s free.