When is dead not dead? The answer depends on what state you're in. Over the past several weeks in California, the family of 13-year-old Jahi McMath has waged an intense legal battle to override the assessment of two Children’s Hospital Oakland doctors, three independent physicians and the Alameda County coroner’s office to have their brain dead child kept on a ventilator and "treated like the innocent little girl that she is, and not like a deceased body." But in Texas, the family of another brain dead person is fighting desperately to have her removed from life support -- a fight it is so far losing. It's losing because there is a fetus inside of Marlise Munoz's lifeless body. And despite her family's pleading, despite Munoz's own clear end of life directives, the state of Texas won't let her go.
As Katie McDonough wrote in Salon Monday, Munoz's "heart hasn’t beat on its own since she collapsed in November at home in Texas" and "a machine currently breathes for her." And Texas law requires that Munoz, a paramedic who was 14 weeks pregnant when an apparent blood clot irrevocably sealed her fate, remain on life support to "sustain" the pregnancy. As Andrea Grimes of RH Reality Check has reported, Munoz's family is currently battling to let her life end with dignity and to change the law, so "no pregnant woman and her family have to go through what we have to go through."
In an enraging piece on the case in Tuesday's New York Times, Manny Fernandez and Erik Eckholm describe how Munoz's family "were stunned when a doctor told them the hospital was not going to comply with their instructions" to take her off support. As a 2012 report from the Center for Women Policy Studies in Washington reveals, Texas, along with a harrowing 30 other states, has "laws restricting the ability of doctors to end life support for terminally ill pregnant women, regardless of the wishes of the patient or the family." Munoz's family says the hospital has "made it clear" that she is brain dead, but she is still being kept artificially sustained in a facility where, chillingly, "the hospital’s plans for the fetus — as well as its health and viability — remain unknown."
Munoz may have been unconscious for up to an hour before her husband, Erick, the father of their 15-month-old son, discovered her – a situation that may have caused untold damage to the fetus. "We know there’s a heartbeat, but that’s all we know," he says. The fetus is now in its 20thweek, and the family claim the hospital doctors have said they will "make a decision about what to do with the fetus as it reached 22 to 24 weeks," and that they have discussed whether Munoz will be able to carry the baby to full term for a cesarean. Her father, Ernest Machado says, "All she is is a host for a fetus … We have no input in the decision-making process. They’re prolonging our agony."
When considering that a majority of U.S. states have barbaric laws to override the final wishes of women and their families, to force women with no voice, no agency, no control, no life, to be incubators for fetuses that might well not even be viable, it bears repeating the words of neurologist Richard Senelick. Writing in the Atlantic two years ago, he said that "Brain death isn't a different type of death, and patients who meet the criteria of brain death are legally dead ... it can be said with certainty that a brain dead individual is dead, the same as if their heart was not beating." Every day that Munoz is being maintained in a sad parody of life, her family is being deprived of the right to grieve for her, to grieve for her pregnancy, to move on with their own lives.
In the meantime, in addition to making a fiasco of patient rights, the state of Texas is denying Munoz and her family their legal right to decide to abort the fetus, while trampling over the definition of death itself. As Southern Methodist University law school bioethics expert Thomas W. Mayo tells the Times, "If she is dead, I don’t see how she can be a patient, and I don’t see how we can be talking about treatment options for her."
Unlike the family of Jahi McMath and its legal team and supporters, Munoz's husband and parents are trying to come to terms with the fact that she's gone and she's not returning. That's a grief that should be respected. That's a devastating loss for any family, one that's being viciously prolonged by a state that's been petulantly dragging it through weeks of torment. Of course Munoz's family never wanted to lose her or the child they were hoping to welcome in the spring. But true humanity means accepting loss. It means mourning it, not using a dead woman and her fetus as some insane experiment. "It’s not a matter of pro-choice and pro-life," Munoz's mother says. "It’s about a matter of our daughter’s wishes not being honored by the state of Texas."
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