Marlise Muñoz: When the corpse is carrying a fetus

Examining the bioethical questions that arise from the tragic and extreme case of Marlise Muñoz

Jewish Perspectives on Bioethics

There are some people we may never have known during their lifetime but who teach us important lessons in their death.

Marlise Muñoz was a 33-year-old who, pregnant with her second child, was found unconscious. Her husband Erick, immediately called for help, but despite medicine’s best efforts at life-support, Marlise never recovered and was declared brain dead a short while later. Even while legally considered dead, John Peter Smith Hospital refused to discontinue Marlise’s medical care, because of a little known Texas statute prohibiting the withdrawal of life-support from pregnant women.

Speaking as her surrogate, Erick challenged the hospital, arguing that the law could only apply to living pregnant women; Marlise was brain dead – and therefore legally dead – and exempt from this law. Last Friday, State District Judge Wallace agreed and ordered the hospital to disconnect and discontinue all medical support. On Sunday morning, John Peter Smith Hospital complied.

Wallace’s ruling makes sense. It’s not right to continue medical support for a corpse – neither legally nor ethically.

The hospital contends that throughout this entire ordeal, it only strove to follow the law. They had incorrectly assumed that it applied to Muñoz and now stood corrected. So why the ruckus? Why the national intrigue?

Brain death is complicated. Although with appropriate medical support the heart and other vegetative functions can continue, when “all functions of the entire brain” irreversibly cease, the law recognizes such a person as dead. Ethicists and religious scholars have long debated this assumption and whether patients should have some choice in accepting it. However, both sides agreed that Marlise was dead – the only question was discontinuing her life-support.

The interest is not necessarily in Marlise, but in her unborn child, who everybody agreed was most certainly still alive.

American law recognizes fetal life as significant, but also recognizes a woman’s right to self-determination with regard to her own medical care. Allowing each person to control their own destiny and healthcare choices without governmental interference is an expression of liberty. This fundamental right is so essential and important to whom we are as a nation that we protect it vigorously. It forms the basis for informed consent – empowering individuals to decide their own fates and respecting their decisions, even if we might disagree with them. Liberty is also the basis for abortion – a woman’s right to control her reproductive health is held so inviolable that it trumps the fetus’s right to live. The State certainly has an interest in preserving the life of a fetus, but a woman’s right to privacy trumps the State’s interest.

Does it make sense to extend this same right to privacy to a dead body? With medical assistance, Marlise’s body functioned as the world’s most natural incubator. There are several cases in the medical literature of brain dead women gestating babies for extended periods; the longest on record is 107 days. It’s possible – certainly rare, but possible.

Is providing that medical support violating a woman’s “personal liberty”? Arguing that the State has no business interfering in a woman’s personal decisions is one thing – something strongly debated in our society – but making that same argument about a corpse is something different entirely. This isn’t about pro-choice vs. pro-life because there is no choice to be made. It’s not just that since Marlise was legally dead, she no longer had a right to choose, but that fundamentally, choice is not something relevant to a corpse.

Normally, we usually offer significant latitude in deciding whether to initiate, withhold, or withdraw life-support and extending that determination to surrogates or proxies when the patient herself cannot communicate – although it’s rarely performed under the national media’s spotlight. Here the issue is terrifyingly more complex though, since by withdrawing Marlise’s life-support, the baby would also die.

How do we fundamentally relate to this unborn child? It cannot yet live on its own, but for that matter, neither can an unassisted one-day-old. Are the intuitive and physiological differences between fetuses and babies sufficiently significant to matter in this context? Does it make a difference that Erick Muñoz reported that preliminary screening showed that the baby had significant lower extremity deformities and possible hydrocephalus? If we were somehow able to deliver the baby this early and place it in a “super-incubator” to promote its development, would we arrive at the same conclusions? Does it change anything if it’s the baby’s dead mother who is functioning as that incubator? These questions cut to the heart of the matter, but were unfortunately not being discussed.

What we as a society need to be talking about is how far we are willing to and should go in supporting the lives of the most vulnerable among us on both extremes of life – those who have not yet lived and those whose lives are nearing the end. In many cases, even with medical support, the lives of both of these groups will be less than ideal, to say the least, but they will be alive. How do we as society value life in itself? How far should we go in supporting it?

The Muñoz’s tragic saga has finally ended. It’s now time for the rest of us to try to learn from it and begin discussing these difficult and sometimes uncomfortable challenges.

There are no clear-cut answers, but we can begin the discussion by asking the right questions.

About the Author
Rabbi David Shabtai, MD is the Rabbi of the Sephardic Minyan at Boca Raton Synagogue and the author of Defining the Moment: Understanding Brain Death in Halakhah []. All opinions are his own.