Most people know the purpose of a living will. The document, first proposed in the 1960s, dictates what kind of life-sustaining medical treatments one wants and does not want so their wishes are known if they can’t communicate due to a serious medical situation.
What most people don’t know is more than 30 states have some sort of provision that allows for pregnancy to cause an exception to a woman’s stated intent of her living will.
It’s often not written, even in small print, on the forms downloaded from health departments or hospitals. Many attorneys don’t inform women of state stipulations when executing a living will at a law office. Some don’t even know. And it’s usually not something women learn on their first prenatal visit with an obstetrician.
“Doctors are not always aware of this, in addition to regular people not being aware that pregnant people don’t have the same rights as everyone else when it comes to advanced directives,” said Meghan Boone, a professor at Wake Forest University School of Law in Winston-Salem, N.C. She teaches and researches topics related to state regulation of the physical body. “Even people who consider themselves to be generally well informed about the issues of reproductive rights are often not aware of this.”
A living will is completely void throughout a pregnancy in Alabama, Idaho, Indiana, Kansas, Kentucky, Michigan, Missouri, South Carolina, Texas, Utah and Wisconsin.
In more than 15 states the advanced directive is not valid if there is any chance of viability for the fetus.
“Viability continues to be a moving target as a result of medical advancements,” Boone said. “Most people would say a 24-week-old fetus was not viable even 10 to 15 years ago. Now it’s possible to keep that baby alive … without knowing the sort of physical or mental impairments” the child might have when born.
That’s why a healthcare surrogate could play a key role in deciding what to do when a pregnant woman is in dire medical condition. The woman’s healthcare surrogate would most likely be the one to care for a baby if they were born.
Many states, however, don’t allow a pregnant woman’s appointed healthcare surrogate to make decisions for her.
“In bioethics, we value self-determination, and we respect the choices the person made beforehand using advanced directives or by their next of kin or their or surrogate decision makers,” said Seema Mohapatra, Associate Professor of Law and at Indiana University Robert H. McKinney School of Law. “But the majority of states restrict the (living will) options that are available. That doesn’t seem to strike a proper ethical balance. … Basically, you lose your autonomy once you become pregnant.”
More than a dozen states do not address pregnancy in advanced directive statutes, but hospitals historically lean to the side of keeping a pregnant woman alive. The ambiguity in the law in these states would tend to lead to litigation between hospitals and family members wanting their relative taken off life support.
A tragic case in Texas
One reason many people aren’t aware of the effect pregnancy can have on a living will is because there aren’t numerous cases of pregnant women becoming medically incapacitated and unable to communicate. But there have been several such situations over the last decade, including one in Texas.
In 2013, 33-year-old Marlise Muñoz collapsed in her kitchen while fixing a bottle for her toddler son. She was 14 weeks pregnant. She was soon declared brain dead at the hospital, possibly due to a blood clot in her lungs.
Though she didn’t have a living will she had made her wishes known to her family. Her husband and parents told the hospital that Muñoz, who was a paramedic, did not want her life prolonged by machines. But the hospital wouldn’t disconnect her ventilator because she was pregnant.
The Texas Advance Directives Act signed by then-Gov. George W. Bush in 1999 states, “A doctor may not withdraw or withhold life-sustaining treatment from a pregnant patient.”
After two months Muñoz’s husband, Erick Muñoz, sued John Peter Smith Hospital for “cruel and obscene mutilation of a corpse.” A state district judge ultimately ruled against the hospital and ordered it to remove Muñoz from life-support machines because she was already dead and the fetus was not viable.
There hasn’t been much effort to amend or strike down state statutes that address pregnancy and living wills.
“When the judge ruled on the (Muñoz) case, he ruled on her status but not the constitutionality of the actual statute,” Mohapatra said.
Individuals have challenged the constitutionality of restrictive laws, but they have been knocked out of court for lack of standing, Boone explained. The women weren’t pregnant or brain dead at the time of the challenges.
“But If you are brain dead and in the circumstances that you would need a living will (to take effect) you are not going to be rushing into court to litigate the validity of your living will,” she said.
“I think there could be good, sound policy that says if you’re a woman when you fill out a living will, fill out this additional form that states what you would want if you were pregnant,” Boone added.
Some would argue, however, that a woman who is not pregnant cannot think as a pregnant woman. Also, if a mother is at risk and her baby is viable, wouldn’t family members want the baby to be delivered if possible?
“An even better policy would be (for pregnant women) to have a living will and have a valid healthcare power of attorney that would have skin in the game emotionally and practically,” in that circumstance, she added.
Mohapatra echoed the need for more awareness and conversations.
“When someone becomes pregnant they go to get prenatal care. This is a good time to complete an advanced directive talking about your wishes if you can’t make decisions for yourself,” she said. “An advanced directive takes the pressure off the family to make these really hard decisions. It values the autonomy and the decision-making you had when you were capable.”
Two years ago, Connecticut passed legislation that offers more options to women wanting advanced directives to continue being valid during pregnancy. They can now state in advance that they would not want life support administered at all or they would like to have life support if medical experts thought a fetus could reach a live birth. They can also have a healthcare power of attorney advocate for their wishes during pregnancy should they become incapacitated.
Significant court cases
In 1975, a 21-year-old woman in New Jersey named Karen Ann Quinlan brought the words “right to die” into households across America. After falling into a coma and ultimately being declared brain dead, Quinlan’s parents decided to have her removed from life support. The hospital refused and a court-appointed guardian argued that disconnecting her from ventilators would be homicide.
When the case went to court, a state superior court judge ruled against the Quinlans. In an appeal to the New Jersey Supreme Court, their request to remove their daughter from the ventilator was granted.
In 1990, the U.S. Supreme Court heard its first “right to die” case with Cruzan v. Director, Missouri Department of Health.
It started when the parents of Nancy Cruzan, who had been in a persistent vegetative state for seven years since a car accident at age 25, filed for a court order to have her removed from life support. Based on a conversation Nancy had with a friend the year of the accident saying she did not want to be kept alive without a chance of a normal life, the trial court ruled that constitutionally there was a right to refuse life-prolonging treatment if there was not cognitive functioning.
But the state appealed the decision and the Missouri Supreme Court reversed that lower court decision. The Cruzans appealed to the U.S. Supreme Court. In a 5-4 split, the court ruled in favor of Missouri. The decision stated that nothing in the constitution prevented the state from requiring clear and convincing evidence, such as a living will, before ending life support.
While this decision favored life support, it clearly illustrated the strength of an advanced directive and could be used to argue for a pregnant woman’s right to the same mandate.
Contact Katherine Snow Smith at Katherine@legalexaminer.com. Follow her on Twitter at @snowsmith.