States vary on brain-death laws
FILE - This undated file photo provided by the McMath family and Omari Sealey shows Jahi McMath. McMath remains on life support at Children's Hospital Oakland after doctors declared her brain dead, following a supposedly routine tonsillectomy. (AP Photo / Courtesy of McMath Family and Omari Sealey, File)
Could headline-grabbing scenarios like those in Texas and California involving brain-dead patients happen here?
Yes, experts say.
First, Texas: Marlise Munoz, 33, was found by her husband, Erick, at 2 a.m. Nov. 26 on their 2-year-old son's bedroom floor. Her heart had stopped for perhaps an hour after a pulmonary embolism. Her husband began CPR, called 911.
She was 14 weeks pregnant.
Her husband told doctors in November to withdraw life support. The hospital refused. It cited a 1977 law, the Texas Health and Safety Code, stating: "A person may not withdraw or withhold life-sustaining treatment . . . from a pregnant patient."
Thirteen states have similar laws - absolute and inflexible, according to Katherine A. Taylor, a lawyer and ethicist who teaches at Drexel University College of Nursing and Health Professions.
Eighteen states, including Pennsylvania, have pregnancy restrictions like Texas', she said, but are less rigid: The fetus must be considered viable.
A 2006 Pennsylvania law, Act 169, that addresses living wills and health-care decision-making, she said, requires that a pregnant patient be kept on life support "unless, with a reasonable degree of medical certainty, the fetus cannot develop to live birth."
In five states, including New Jersey, laws allow the woman or her proxy to direct what she would want if she is pregnant. "What's also important about these states," Taylor said, "is that they give notice in their living will form that she should think about this possibility and decide what she would want."
In 14 states, the law is silent on the subject.
"This statute in Texas should not apply to this patient because she is dead," Taylor said. "But if she weren't dead, these statues are bad law, bad public policy, bad ethics.
"I think every family should make their own decision about that," she added. "In Texas, the state lawmakers have stepped in and made it for them, decided this woman should be kept alive before viability. That is so unjust."
One argument by Marlise Munoz's attorney, fighting to force the hospital to withdraw life support, is that the Texas law violates her constitutional rights to equal protection under the 14th Amendment. It denies pregnant women and their proxies decision-making authority, a right afforded to everyone else.
Even though the hospital acknowledges Munoz is dead, it appears to be waiting for a court ruling.
"You're clearly trying to balance the potential life of the fetus with what the family and deceased would have wanted," said Arthur Caplan, a former University of Pennsylvania bioethicist now at New York University.
"It's not a matter of being pro-life or pro-choice to me," he said. "It's more nuanced. I'm not denying there's a fetus to think about. But there are so many uncertainties. I'm willing to think the family and husband should decide what's best, and not the Texas legislature."
John M. Haas, president of the National Catholic Bioethics Center in Philadelphia, says Texas law no longer applies, since Munoz is dead. He says the family should make the decision now, and a big consideration is the viability of the fetus.
"The people think the Catholic Church is black and white on these things, and we're not," he said. "We accept judgment of physicians. . . . It seems to me that if it were highly likely that the child could survive if the corpse was kept functioning for another week, there would be a strong presumption of doing that."
But if there were little chance the fetus would be viable, he said, the opposite would be true.
"If the child was deprived of oxygenated blood," he said, "do you have to use extraordinary means to keep the child alive? The answer would be, no, you don't."
The second case is in California, where Jahi McMath, 13, had tonsil surgery Dec. 9. She ended up brain-dead. When the hospital tried to remove the ventilator, her parents went to court, which granted a temporary stay.
After a coroner issued a death certificate, the family wheeled the corpse, lungs still functioning with a machine, out of the hospital. The family's lawyer said the body is now on a feeding tube and ventilator at an undisclosed hospital.
"I don't think I've ever had a case where a family says, 'I'm sorry, I can't accept that. You have to keep her going,' " said Howard I. Hurtig, a neurologist at Pennsylvania Hospital. "There is no law that requires you to keep her going. This was settled 40 years ago."
Families often refuse to withdraw life support when doctors and nurses feel care is futile - but not after a patient has died.
Hurtig said what's likely going on in California is a failure in communication.
Clearly, he said, the family was heartbroken. Perhaps doctors didn't show enough compassion. Maybe there were previous episodes when the family felt disrespected or was denied care.
"My own experience is, if you explain things carefully and compassionately, . . . a lot of times people come to their senses," Hurtig said.
Taylor said New York and New Jersey laws allow families of brain-dead patients to ask that death be declared based on the absence of a heartbeat.
"It's my understanding it was passed primarily to accommodate the Jewish Orthodox community," she said. The New York statute, for instance, makes it clear the accommodation is temporary and urges hospitals to write polices providing "guidance on limits to the duration of the accommodation."
Taylor said she has been on the ethics committee of a Princeton hospital for six years and the issue has not come up.
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