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State invasion of deep heartbreak

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NEW HAVEN, Conn. -- Marlise Munoz has been brain dead since Nov. 26, and the suffering of her family can only be getting worse. Munoz was found unconscious on her kitchen floor in November, probably because of a blood clot in her lungs.

At the time, she was 14 weeks pregnant. Ever since, she has been kept "alive" with a ventilator because the hospital where she was taken, John Peter Smith Hospital in Fort Worth, Texas, believes it must not withdraw "life-sustaining treatment" from a pregnant patient, based on a Texas law that so mandates. And now, lawyers for Erick Munoz, her husband, say the fetus his brain-dead wife has been kept on life support to carry is "distinctly abnormal."

Erick and Marlise's parents say she would never have wanted this outcome: She was a paramedic who understood end-of-life issues. She and Erick, also a paramedic, have a 15-month-old son. He is seeking a peaceful end for his wife as a parent as well as her husband.

Yet somehow, despite her family's wishes, Marlise's body is being kept on life support because it is still host to a fetus, now at about 22 weeks, his lawyers say has fluid building up inside the skull, a possible heart problem and lower extremities "deformed to the extent that the gender cannot be determined."

How can the state supersede the wishes of Erick in this scenario? The answer is it can't. Hospitals cannot provide "life-sustaining treatment" to a person who is dead, and that's what brain-dead means: death.

This is not the same as being in a vegetative state, where you can breathe without a respirator. In all 50 states, brain-dead means you are legally dead.So Marlise remains hooked up because the hospital is misreading Texas law. NYU bioethicist Arthur Caplan laid this out last week, explaining why the hospital is misinterpreting the law (and also why that law must be unconstitutional). "The fact that the fetus apparently has significant abnormalities shows just how awful, misguided and cruel the Texas law is," he emailed me this week. "The uncertainties about the pregnancy -- damaged fetus, almost no cases of trying to bring a 14-week-old to term in this circumstance, what the dad is able to cope with, his dead wife's wishes about wanting to have a child if she cannot parent, the massive costs involved and the impact of a tragic outcome on his other child -- they point clearly in the direction of who should be making the decisions and who should have been making them all along. Not the hospital, not the legislature, not pro-life or pro-choicers -- the husband."

Erick is suing the hospital with a hearing scheduled for Friday. There is a precedent in Texas for withdrawing treatment from a brain-dead pregnant woman -- Tammy Martin, the subject of a month-long court battle in 1999 -- but in that case, the fetus was also dead.

Still, any judge, whatever his politics, should follow that ruling and give Erick the right to respect his wife's wishes. And the judge should act fast, because the fetus is approaching the point of viability, which will make the situation much more difficult. This family has suffered so much already. No state, and no hospital, should invade this deeply personal sphere of heartbreak.


Emily Bazelon is a Slate senior editor and a fellow at Yale Law School. She is the author of Sticks and Stones.


Republished from the Winnipeg Free Press print edition January 24, 2014 A13

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