Muñoz lesson: How the law fails us at beginning and end of life

Marlise Muñoz is off life support. But the debate over keeping the fetus inside her alive focused on the wrong victim

January 26, 2014 7:45AM ET
Erick Munoz, the husband of Marlise Munoz, poses for a photo at his home on Jan. 3, 2014. On Jan. 24, a Texas judge granted Erick's motion and ordered John Peter Smith Hospital to remove Marlise, who is brain-dead and pregnant, from life support.
Ron T. Ennis/Fort Worth Star-Telegram/MCT/Landov

In late November, when she was 14 weeks into her second pregnancy, Marlise Muñoz died. Her corpse remained attached to medical equipment that was inaptly described as “life-sustaining.” John Peter Smith Hospital in Fort Worth, Texas, refuses to accede to her widower’s request to unhook Muñoz’s dead body, claiming that Section 166.049 of the Texas Health and Safety Code prohibits such action. On Jan. 24, Tarrant County District Court judge R.H. Wallace granted Erick Muñoz’s motion that the hospital be compelled to remove his wife’s body from technology that was not and, indeed, could not be keeping her alive. The hospital yielded to the judge's order, and Marlise Muñoz's body was removed from life support at 11:30 a.m.

Although the tragic story has concluded, the legal and ethical issues it raised will remain.

The legal issue appears straightforward: Section 166.049 states, “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.” But Marlise Muñoz was not a pregnant patient. She was dead, and therefore Section 166.049 is irrelevant. The moral issues are less clear, and thinking about them illustrates that, much as we might want it to, the law, by itself, is ill equipped to deal with the inevitable ethical issues that arise from the twin facts that human beings are mortal and mammals.

Critics are right to object to so-called pregnancy exception laws, which require doctors to ignore or override a pregnant woman’s wishes concerning her end-of-life care. Where such laws are in force — to varying degrees in more than two dozen states — terminally or irreversibly ill pregnant women will be kept alive against their wishes, forced to endure pain and often invasive treatment in order that the fetuses in their bodies might be brought to viability or full term. Muñoz, however, was not suffering that horror. Since she was deceased, she could no longer suffer.

So, perhaps what is morally amiss is that her wishes were not being respected. It has been widely reported that Muñoz, an experienced paramedic like her husband, told him she did not want to be put on life support should she be in a position to require it. But we do not know how she would have weighed the fact of her pregnancy. It is possible that she would have decided to provide the necessary support of her own body for the sake of the fetus.

That Muñoz’s body was being treated, as Frank Bruni wrote in The New York Times on Jan. 18, as “an artificially maintained ecosystem, an incubator for a fetus that has somehow been given precedence over all other concerns,” might also give us moral pause. As some philosophers would put it, Muñoz was being treated merely as a means and not as an end in herself — that is, not as a person. Were she alive and were she to competently refuse to provide this support, it would indeed be morally wrong to so treat her. However, treating her dead body merely as a means violates no rights of hers. Indeed, the dead bodies of organ donors are regularly kept artificially alive in order to preserve usable organs for transplant. And while a 22-week-old fetus is not an organ or piece of tissue, if someone has a legitimate interest in its survival, what, precisely, is the moral worry in maintaining a dead female body as a life-support system for the fetus?  

The Muñoz case reminds us that advance directives do not provide the kind of insurance against unwanted treatment we would like to believe they do.

Imagine a situation in which the biological father of a fetus that is still alive inside its gestational mother’s dead body demands that doctors do everything they can to maximize the chances of the fetus developing. It is creepy to think of a fetus being kept alive inside a corpse, and one can worry about how a resulting child might feel about its early life. But such a father cannot rightly be criticized as the state of Texas is now being criticized, as illegitimately interfering with the woman’s dead body. The fetus’ biological father can reasonably be presumed to have an interest in its survival. And, in cases where the precise wishes of a dead or dying patient are not known or knowable, medical personnel are morally required to defer to the wishes of the person closest to that person.

What is morally problematic in this case, then, is not that Marlise Muñoz might be forced to carry the fetus to term, nor is it that her precise wishes might not be respected, nor is it that a fetus was being kept alive in a dead woman’s body — though as we now know about the Muñoz fetus, a fetus maintained in the uterus of its dead gestational mother can suffer significant impairment. The real wronged party here was Erick. He is fully competent, and it is his moral right to make decisions regarding the treatment of his dead wife’s body and regarding the provision of life support for the fetus of which he is the biological father.

The Muñoz case reminds us that advance directives do not provide the kind of insurance against unwanted treatment we would like to believe they do. Given orally or in writing, they are inevitably imprecise. We simply cannot plan for every contingency. And it is not unreasonable for emergency medical personnel to err on the side of saving life. Investing another person with durable power of attorney for one’s health care decisions is the only way each of us can hope to prevent unwanted treatment at the end of our lives.

In this case, the only life that could have been saved was that of the fetus inside Marlise Munoz’s body. For some people, it is a moral and legal no-brainer that the hospital should do all it can to give a fetus every chance to survive. The fetus, it is said, has a right to life, and the state has a compelling interest in protecting that right.

But on closer inspection, the language of individual rights is quite awkward when applied in the context of pregnancy. We tend to construe most moral conflicts in terms of one’s rights versus another’s rights. Being pregnant, however, is not like anything else. A fetus is not merely a part of a pregnant woman’s body like, say, her spleen. But neither is it a tenant in a pregnant woman’s body. We make no progress pitting the rights of a pregnant woman against the rights of a fetus, as if woman and fetus are completely independent human beings. Until we construct a moral and legal framework that cleaves more authentically to the facts of human pregnancy, families will be trapped in the sort of surreal and painful legal battle that Erick and his parents-in-law have fought.

Judge R.H. Wallace has demonstrated the wisdom and courage to acknowledge the limits of the law and allowed Erick Muñoz the moral relief he seeks. Will the same be said of similar cases in the future?

Editor's note: this article has been updated to reflect the latest news from the Marlise and Erick Muñoz story. (2:52 p.m. EST)

Susan Dwyer is an associate professor of philosophy at the University of Maryland. She specializes in areas at the intersection of moral philosophy, constitutional law, feminist theory and moral psychology.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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