A Texas lawmaker has introduced a proposal to repeal the pregnancy exclusion in the state’s Health and Safety Code. Under current law, pregnant people are prohibited from exercising an advance directive in end-of-life decisions, and the state is empowered to override their appointed health care proxy. If the measure is passed, pregnant Texans would have the same rights as non-pregnant people to refuse mechanical support and make other essential planning decisions about their medical care.
"Being pregnant should not prohibit a woman from having her personal decision respected. The law should reflect the consideration a woman puts into planning the treatment she wishes to receive, or not receive, when she is no longer able to express herself," said Democratic state Rep. Elliot Naishtat, the bill’s sponsor. "Planning for end-of-life care is a deeply personal decision-making process for all persons, including those who may be pregnant."
Treating pregnant patients as a category of persons with lesser rights is far from a hypothetical scenario. In November of 2013, Marlise Muñoz, a paramedic and young mother, collapsed in her home and was rushed to a hospital in Fort Worth. Days later, doctors declared Muñoz brain dead -- legally and medically dead. But because Muñoz was 14 weeks pregnant at the time of her death, the state of Texas ignored her end-of-life wishes -- and the anguished protests of her husband and family -- and kept her body on mechanical support.
Muñoz’s family filed a lawsuit to remove her body from the ventilator and other machines, but lawyers for John Peter Smith Hospital argued the application of the law was consistent with the state’s “compelling interest in preserving the life of an unborn child.”
Muñoz’s body was used to incubate her fetus for two months before her family prevailed in court. Though she died in November, her body wasn’t laid to rest until January. Naishtat introduced the measure in response to Muñoz’s case, and this week her family participated in a press conference to express their support.
“The state not only tied our hands, but those of the doctors and the hospital too,” said Lynne Machado, Muñoz’s mother. “What should have been an immensely private and personal moment for our family was used as a political debate. The doctors weren’t practicing medicine, they were practicing politics.”
But Naishtat isn’t the only lawmaker to introduce a proposal in response to Muñoz’s case. Last month, a Texas Republican filed a measure to strengthen the pregnancy exclusion. Krause's bill would have appointed Muñoz’s fetus a lawyer. As the Dallas Morning News reported at the time, state Rep. Matt Krause said the measure would give a “voice” to embryos and fetuses. “You’ll hear what the family wants, and you’ll also give the pre-born child a chance to have a voice in court at that same time,” he said. “The judge weighs everything and he or she makes their decision based on that.”
Krause’s language underscores something essential about the larger context of pregnancy exclusion laws, which are on the books in more than 30 states. In addition to undermining the basic rights of pregnant people and creating a distinct -- and lesser -- legal status for people who become pregnant, these laws function as a backdoor to establishing fetal personhood.
While Krause insists that his proposal is a pro-life initiative, Muñoz’s family publicly denounced the bill. “To me that’s saying that my family was not looking out for the best interest of Marlise and the fetus,” Lynne Machado said last month. “We feel our actions and decisions were based on what was best for both of them.”
This week, Muñoz’s father Ernie Machado expressed the devastating consequences the state’s pregnancy exclusion had on his daughter -- and his family. "She was human,” he said. “She was not an experiment.”