Thread: Brain-Dead Pregnant Woman Kept Alive Against Her and Her Family's Wishes Board: Oblivion / Ship of Fools.
To visit this thread, use this URL:
http://forum.ship-of-fools.com/cgi-bin/ultimatebb.cgi?ubb=get_topic;f=70;t=030723
Posted by stonespring (# 15530) on
:
http://abcnews.go.com/US/wireStory/pregnant-brain-dead-texas-woman-alive-21416685
Does the value of a fetus' life allow his/her mother's body to be kept alive on life support - even when the mother in something like a living will and her family oppose this - in order to carry the child to viability?
What is also interesting is the discussion of what healthcare is in this case. Many doctors claim that keeping a braindead body on life support is not healthcare and hospitals should be prohibited from doing it.
I am troubled about this since I am kind of a fence-straddler on abortion. Thoughts?
Posted by Doublethink (# 1984) on
:
If she really is dead, she is not being 'kept alive in this condition' - so there is some confusion about what everybody really means.
If she is really dead, nothing that is done to her body can harm her. It can distress her family though.
I struggle to understand, on a personal level, why your reaction to the loss of your wife would be to reject the chlid she was carrying.
I wonder if she carried an organ donor card, because that is effectively what the hospital is doing - using her womb as a donated organ to incubate the foetus.
Families in the UK are allowed to refuse to donate their relative's organs - even though someone may die if they do not get the transplant, I suppose the logical extension is that he ought to be able switch off the machine.
I am revolted by the idea of deliberately switching off the machine and allowing a living thing, especially a potential child, to suffocate and die in a corpse though. I also wonder if the husband is in a fit emotional state to be making a decision about the foetus at the moment.
Posted by Lamb Chopped (# 5528) on
:
What concerns me is that I saw a quote from him saying that he was certain the child would be disabled from the crisis and therefore ...
Posted by saysay (# 6645) on
:
quote:
Originally posted by Doublethink:
If she is really dead, nothing that is done to her body can harm her. It can distress her family though.
I don't know. When my mother was brain dead and being kept alive by machines, I had the distinct feeling that keeping her body "alive" was in some sense tethering her soul to this world and trapping it in some sort of limbo. Which may be completely irrational and even if not is something that rests on all sorts of beliefs that not everyone shares, and maybe it is true that it was more distressing to me than to her.
quote:
I struggle to understand, on a personal level, why your reaction to the loss of your wife would be to reject the chlid she was carrying.
AIUI, given that the mother's brain death was caused by a lack of oxygen to the brain, there's some concern that the fetus was also irreparably harmed.
The woman had a living will and was very clear about not wanting to be kept alive in these circumstances, although it is doubtful that she imagined these exact circumstances (being pregnant at the time). Since she is legally defined as dead, I don't think the hospital really has a legal leg to stand on in terms of keeping the machines on.
But the whole situation is horrible.
Posted by Anglo Catholic Relict (# 17213) on
:
It cannot hurt the woman to keep her viable until the baby is delivered, so I would be in favour of keeping the baby alive, however that is done. I do not think it is likely that the prior agreement covered this eventuality.
I can understand the pain the husband feels, but I think once he holds that baby, he will be grateful for it.
Posted by stonespring (# 15530) on
:
As a man, I can't really know what it is like to be a woman or to be pregnant. But I like to think that if I was a woman I would want to have my body kept on life support even if I was brain dead to allow a fetus inside me to develop and be born. (That is, if any hospital would allow it - and it is unclear whether the hospital in Texas is actually following the law.)
However, for those people who oppose criminalizing abortion - especially in extreme cases like a threat to the mother's life, rape, or incest - because doing so makes the mother's body an unwilling incubator for a life whose gestation (a precious human life, but so is the mother's) might cause her great mental trauma if not greatly threaten her own life. This case takes that further and makes the mother's (essentially) dead body a baby oven against her own will. People who oppose criminalizing abortion would argue that no woman can give future consent to 9 months of gestation by having a sexual act - so her thoughts on the use of her body which she made very clear are to be taken into consideration now that she is brain dead.
As I said, though, I am a fence-straddler on abortion so I am not quite sure what should happen in this case.
Posted by no prophet (# 15560) on
:
quote:
Originally posted by stonespring:
As a man, I can't really know what it is like to be a woman or to be pregnant.
This is true, though as a man, I ended up with morning sickness along with my wife when she was pregnant. Apparently some combination of hormonal changes and psychological synchronicity cause this. Couvade Syndrome they said I had. Which apparently may either be a legit diagnosis or means I am/was/are nuts.
Posted by Penny S (# 14768) on
:
Could be a legit diagnosis which is actually a polite way of saying your second possibility!
Posted by leo (# 1458) on
:
quote:
Originally posted by Anglo Catholic Relict:
It cannot hurt the woman to keep her viable until the baby is delivered, so I would be in favour of keeping the baby alive, however that is done. I do not think it is likely that the prior agreement covered this eventuality.
I can understand the pain the husband feels, but I think once he holds that baby, he will be grateful for it.
Might it hurt the baby? Isn't there some sort of socialising/communication going on in the womb between mother and baby of which the baby would be deprived?
Posted by Anglo Catholic Relict (# 17213) on
:
quote:
Originally posted by leo:
Might it hurt the baby? Isn't there some sort of socialising/communication going on in the womb between mother and baby of which the baby would be deprived?
Anyone can talk to the baby, play music, etc. The father can do all of that.
Clearly, this is not a normal pregnancy, but there is the potential for something to be salvaged from a tragic situation. As long as that potential exists, I would do everything possible to maintain it. If the baby does not survive for whatever reason, at least it will not be by choice.
Posted by Palimpsest (# 16772) on
:
So how about no longer requiring organ donor cards. Switch to a system when you're dead the doctors can harvest anything that might be useful for other patients or research. It might distress the family but it wont bother the dead person and someone else might benefit.
I'm not in favor of this, but I don't see how it's different from what people here are suggesting.
Posted by Organ Builder (# 12478) on
:
quote:
Originally posted by Anglo Catholic Relict:
Anyone can talk to the baby, play music, etc. The father can do all of that.
Except that the father already has to take care of a 14 month old son who has just lost his mother.
These were people who were not ignorant of medical science and procedures. I would expect they knew what they were doing when they put their paperwork together. From the article linked it would seem that there is as yet no clear consensus that the fetus is undamaged, viable, and would result in a healthy child. She wasn't 8 months pregnant; she was 14 weeks. It seems to me that is a very different proposition.
I'm not "for" abortion, but I'm more comfortable leaving medical decisions in the hands of doctors and patients than in the hands of politicians and theologians. It seems clear that the Texas hospital is doing this only because of an unclear law--and I would trust a great white shark as soon as I would trust the Texas Legislature on just about any subject you might care to name.
So I feel some misgivings about this tragic case because things like this always make me wonder "What would I do, or want done with me, in similar circumstances?" I still don't know, but I would hope whatever decision I made would be respected, especially since I have gone to the expense to have medical powers of attorney and a living will drawn up.
Posted by Porridge (# 15405) on
:
I can't help wondering who the hospital plans to bill for the ginormous charges that some 20 weeks of care is going to produce.
It's all very well for hospitals to refuse to turn off life-support to a corpse and her survivors against those parties' unanimous wishes, but if the hospital also plans to recoup the expenses involved from these same people, then they and the victim's family are looking at litigation for many years to come.
A 19-week fetus is unlikely to be viable; substantial prematurity (even absent any accident-related disability incurred by the fetus) poses further threats to the fetus' life-health-safety, so we're looking at roughly 5 more months of hospitalization & services. At going prices, you could probably buy Rhode Island for the "Payment Due" line on the resulting hospital bill.
Perhaps Texans in the hospital catchment area -- since it's their hospital bills which will escalate as a result of the hospital's desired course of action -- should consider a class action suit.
Posted by Anglo Catholic Relict (# 17213) on
:
quote:
Originally posted by Palimpsest:
So how about no longer requiring organ donor cards. Switch to a system when you're dead the doctors can harvest anything that might be useful for other patients or research. It might distress the family but it wont bother the dead person and someone else might benefit.
I'm not in favor of this, but I don't see how it's different from what people here are suggesting.
If you can see no difference between a baby and a transplant organ, then I see no point trying to explain further.
Posted by Barnabas62 (# 9110) on
:
Precisely the thoughts which occurred to me, Porridge.
Not sure about the legal aspects of the ethical dilemma either. I suspect that a living will is "turn off life support if I'm brain dead" rather than "turn off the life machine even if I'm pregnant as well as brain dead". But I don't see clarity on that.
Nor do we know if the foetus has been irreparably damaged by the way the traumatic death occurred. What tests if any have been made/can be made. And if it's a judgment call who gets to make it, if not the father? (And if not him, why not him?) I don't know the details of Roe/Wade type local legislation and whether there has been some detailed modification in Texas law to un-Roe/Wade to some degree, nor whether there is a test in law of state/federal legislation possible conflict.
It looks like a minefield to me. What a nightmare for the father and the rest of the family. My heart goes out to them.
[ 10. January 2014, 21:41: Message edited by: Barnabas62 ]
Posted by mousethief (# 953) on
:
quote:
Originally posted by Anglo Catholic Relict:
quote:
Originally posted by Palimpsest:
So how about no longer requiring organ donor cards. Switch to a system when you're dead the doctors can harvest anything that might be useful for other patients or research. It might distress the family but it wont bother the dead person and someone else might benefit.
I'm not in favor of this, but I don't see how it's different from what people here are suggesting.
If you can see no difference between a baby and a transplant organ, then I see no point trying to explain further.
The question is, why can't you see the similarity?
Posted by Soror Magna (# 9881) on
:
quote:
Originally posted by Anglo Catholic Relict:
If you can see no difference between a baby and a transplant organ, then I see no point trying to explain further.
The analogy is between the transplant organ and the uterus, not the baby. The baby is getting use of another person's body part, just as a transplant recipient does. The difference is that in this case, the recipient is inside the "donated" organ.
Posted by Amos (# 44) on
:
What's the medical precedent for this procedure? I may be wrong, but I cannot recall hearing of a case in which the mother has been kept alive for the sake of the foetus in which the foetus has survived--especially one that young--I read the reference in the article, but am extremely skeptical.
[ 11. January 2014, 07:41: Message edited by: Amos ]
Posted by leo (# 1458) on
:
quote:
Originally posted by Anglo Catholic Relict:
quote:
Originally posted by leo:
Might it hurt the baby? Isn't there some sort of socialising/communication going on in the womb between mother and baby of which the baby would be deprived?
Anyone can talk to the baby, play music, etc. The father can do all of that.
Outside the mother's body, these are muffled sounds.
Surely, there is some direct communication in utero of which the foetus is deprived.
It's mentioned here.
and there's a slightly new-agey religious perspective on it here.
Posted by Barnabas62 (# 9110) on
:
I suspect it is a complex subject, inevitably under-researched subject, particularly in these circumstances. I remember Frank Lake wrote some stuff about the relationship between maternal unhappiness about carrying the unborn, and some subsequent psychological problems. Perhaps signals are conveyed by noise, perhaps by bodily tension, perhaps chemically through blood circulation? Who can tell?
It would seem wrong to assume inevitable psychological or physical damage to the unborn in these exceptional circumstances.
Posted by mousethief (# 953) on
:
Paint me skeptical that an artifically-kept-alive human incubator produces all the same chemicals the baby needs as a real, living mother.
Posted by Lamb Chopped (# 5528) on
:
It's not like the baby has any other choice of incubator, though. Unless you consider death a choice?
Expanding on what I said earlier--it troubles me that so many people seem to consider possible disability sufficient reason to turn off life support and let the child die inside its mother. Does disability make the difference between life and death, then?
And even if that were granted (which I don't), we're talking possible disability--no certainty.
Nobody is going to keep this woman on life support indefinitely. At most it will last until the baby is delivered. I grant you it's a nightmarish, heartrending situation, but it only needs enduring for a few months more. Yes, it's hellish. But it's a freaking baby. And presumably one that was wanted, born to two parents who presumably loved one another, flesh of their flesh and a remembrance of the mother who is gone. Why throw all of that away--a baby away--to avoid temporary life support?
From another perspective--is there anybody who could bear to pull the plugs him/herself, knowing that a living child will smother inside the woman's body?
I will now prepare for incoming missiles.
Posted by Barnabas62 (# 9110) on
:
quote:
Originally posted by mousethief:
Paint me skeptical that an artifically-kept-alive human incubator produces all the same chemicals the baby needs as a real, living mother.
I agree with that. It's not the best. Sometimes the living breathing mother isn't the best for the foetus either. In some medical conditions, it is almost like a fight is going on.
Not just medical conditions. I think Frank Lake had a point about pre-birth alienation as a result of unwanted but endured pregnancies. However whacky some of his therapeutic suggestions may have been.
I suppose the questions "good enough?" and "what are the options?" come into play at this point.
[ 12. January 2014, 06:20: Message edited by: Barnabas62 ]
Posted by North East Quine (# 13049) on
:
American Shipmates - if the baby is born needing life-long care, what assistance is available for the father, who is already the single parent to a young child? If he can't work because the baby needs 24/7 care, will the state support the family financially, keep a roof over their heads etc?
Posted by Eliab (# 9153) on
:
I'm assuming that abortion is legal in Texas, and that if the woman were conscious and mentally competent, she would have the right to terminate her pregnancy, or refuse medical care necessary to preserve either her foetus or her life.
If so, the first question is surely whether her reported choice not to be kept alive on life support does genuinely amount to a decision to be switched off if on life support while pregnant. I don't think it does. It seems to me that this is the sort of change of circumstance that can lead to people changing their minds. I don't think there's any way of knowing for sure what she would have decided if her current state had been anticipated.
The next question is whether her husband gets to decide for her. He's almost certain better placed than a stranger to guess at what his wife would have wanted, and to want to respect her wishes, but I wouldn't say he should have absolute authority to make the call. I don't think that power to make all healthcare/end-of-life decisions for a spouse is inherent in the marriage relationship - for a start a husband and wife may well fundamentally disagree about such things. I disagree with most of my family. I still love them, trust them and would want the best for them, but when it's me in the hospital, I want my choices to be upheld against what they think is my best interest. Similarly, I don't think that a husband has authority to terminate his wife's pregnancy if she for any reason cannot be consulted. He may be the best husband in the world, but that's a decision which I think only she can make.
If I'm right about those two questions, the last one is whether keeping the life support on is the default state, and a positive decision by a proper authority is needed to turn it off. I think that is the only safe course. So, if we cannot take the woman's reported views as a definite decision to die despite being pregnant, and her husband's preference, however well-informed and well-intentioned, is not to be regarded as binding on her, the right thing to do is prolong her life for the child to be born.
I'm anti-abortion by instinct and pro-choice by principle, so to check whether my instincts have guided me wrongly, I ask myself whether I'd apply the same principle to the opposite case. If the wife had definitely expressed a choice to refuse life support in these circumstances, and the husband wanted the unborn child saved, would I be happy to overrule his wishes then? Answer - no, I wouldn't be happy. That would be an appalling thing to do. But it would still be right. Ending a pregnancy has to be the woman's choice. It's her body. Only she gets to make that call.
I can see the argument that in this case she has made the call. I'm not convinced. I think (from the limited information in the report) she has said what she would want for herself if terminally ill, but I don't think that it is possible from that alone to infer that she would want the same if terminally ill and pregnant. Maybe she would have done, if she'd had a premonition of these events, but we don't know that. And a guess, even the best guess, of what she would have chosen isn't the same as her actually choosing it. She hasn't made a positive decision to end her pregnancy, and in the absence of that, I don't think that anyone, not her doctor, not her husband, not her government, has the right to make that choice for her.
[ 12. January 2014, 15:34: Message edited by: Eliab ]
Posted by Porridge (# 15405) on
:
quote:
Originally posted by Eliab:
I'm assuming that abortion is legal in Texas, and that if the woman were conscious and mentally competent, she would have the right to terminate her pregnancy, or refuse medical care necessary to preserve either her foetus or her life.
If so, the first question is surely whether her reported choice not to be kept alive on life support does genuinely amount to a decision to be switched off if on life support while pregnant. I don't think it does. It seems to me that this is the sort of change of circumstance that can lead to people changing their minds. I don't think there's any way of knowing for sure what she would have decided if her current state had been anticipated.
The next question is whether her husband gets to decide for her. He's almost certain better placed than a stranger to guess at what his wife would have wanted, and to want to respect her wishes, but I wouldn't say he should have absolute authority to make the call. I don't think that power to make all healthcare/end-of-life decisions for a spouse is inherent in the marriage relationship - for a start a husband and wife may well fundamentally disagree about such things. I disagree with most of my family. I still love them, trust them and would want the best for them, but when it's me in the hospital, I want my choices to be upheld against what they think is my best interest. Similarly, I don't think that a husband has authority to terminate his wife's pregnancy if she for any reason cannot be consulted. He may be the best husband in the world, but that's a decision which I think only she can make.
The reason she can’t be consulted, though, is that she’s dead. The dead, so far as I know, are deprived of their agency upon shuffling off this mortal coil. They make wills and create powers-of-attorney, etc. while still alive.
quote:
Originally posted by Eliab:
If I'm right about those two questions, the last one is whether keeping the life support on is the default state, and a positive decision by a proper authority is needed to turn it off. I think that is the only safe course.
Safe for whom? In actual practice, these situations often arise out of a hospital’s desire to protect themselves from lawsuits.
The safety of the fetus is already probably compromised by being gestated inside a corpse. I keep wondering what the narrative will sound like when this child, if it survives more-or-less intact, begins to ask the inevitable question children ask about their own origins. “Yes, dear heart; you lived for 5 months in the womb of a dead woman.”
How about the economic safety of the extant family – a now-single father and a toddler, possibly joined by a possibly disabled baby – who are likely to face a lifetime of staggering debt as a result of the hospital’s refusal to honor the dead woman’s wishes?
Posted by mousethief (# 953) on
:
quote:
Originally posted by Eliab:
I don't think that power to make all healthcare/end-of-life decisions for a spouse is inherent in the marriage relationship
IANAL, but I believe that it is exactly that in the United States. One of the reasons gays have wanted to be allowed to marry is that as non-spouses, a life partner does not have the right to make end-of-life decisions, sometimes even in the presence of durable powers of attorney and so forth. Spouses do.
quote:
I don't think that anyone, not her doctor, not her husband, not her government, has the right to make that choice for her.
But somebody IS making the choice to keep her alive. The question is not whether anybody has that right. SOMEBODY must decide. The question is who should be allowed to. Legally, in the United States, that person is the spouse.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by mousethief:
quote:
Originally posted by Eliab:
I don't think that power to make all healthcare/end-of-life decisions for a spouse is inherent in the marriage relationship
IANAL, but I believe that it is exactly that in the United States. One of the reasons gays have wanted to be allowed to marry is that as non-spouses, a life partner does not have the right to make end-of-life decisions, sometimes even in the presence of durable powers of attorney and so forth. Spouses do.
quote:
I don't think that anyone, not her doctor, not her husband, not her government, has the right to make that choice for her.
But somebody IS making the choice to keep her alive. The question is not whether anybody has that right. SOMEBODY must decide. The question is who should be allowed to. Legally, in the United States, that person is the spouse.
Well, I am a lawyer, but not an American one and not with any expertise in this particular subject, but I'm pretty sure you're right. Eliab is effectively leaving a gap in the law where no-one is authorised to make decisions, and the law doesn't like those kind of gaps.
There are several ways of looking at it, but I tend to think they all end up reaching the same point, that the husband is going to be in the best position to make decisions. If it's a decision about his wife's medical care (which is questionable if we regard her as dead), then it's his call. If it's a decision about the disposal of his wife's body, then it's his call. If it's a decision about the medical care of his child, then it's still his call.
NB That's on the assumption that she has not already made the call. I can understand Eliab's argument that what she had said previously might be seen as not covering this situation, where turning her machine off would end another life.
But, I don't think I really have to decide conclusively whether I agree with that argument because we're not in a situation where the husband's wishes differ from what we know of the wife's wishes. Either we accept that the wife has made a decision which covers this situation (in which case, go with her wish), or we decide that she failed to address this situation and it's the husband's call - which gets us to the same point.
The proposition that the wife's decision did not cover her being pregnant is not, as a matter of logic, the same as a positive decision on her part not to have the machine turned off if she was pregnant. There is no warrant to imply a positive decision that she wanted to stay on the machine.
[ 13. January 2014, 07:10: Message edited by: orfeo ]
Posted by Anglo Catholic Relict (# 17213) on
:
quote:
Originally posted by mousethief:
The question is, why can't you see the similarity?
Probably because I am a mother.
Posted by Eliab (# 9153) on
:
quote:
Originally posted by Porridge:
The safety of the fetus is already probably compromised by being gestated inside a corpse. I keep wondering what the narrative will sound like when this child, if it survives more-or-less intact, begins to ask the inevitable question children ask about their own origins. “Yes, dear heart; you lived for 5 months in the womb of a dead woman.”
How about the economic safety of the extant family – a now-single father and a toddler, possibly joined by a possibly disabled baby – who are likely to face a lifetime of staggering debt as a result of the hospital’s refusal to honor the dead woman’s wishes?
Suppose the woman had left clear instructions not to be switched off. Suppose she had said that every risk should be taken and no expense spared to bring her child into the world. Would those reasons then seem compelling arguments for discontinuing life support?
If not, then we agree on the fundamental issue that her choice ought to prevail. I can't then see how the issues you raise ought to obscure the question of who should decide if she has not made and cannot make that choice. They are all important considerations for the ultimate decision-maker, but they do not predetermine what the decision should be. Women do sometimes terminate their pregnancies for reasons connected with the origins of the child*, or because of concerns about its health, or because of economic circumstances, but sometimes they continue with pregnancies despite those factors. And we certainly don't compel women to terminate their pregnancies when those reasons for doing so exist. We therefore can't assume that just because there appear to be excellent reasons for termination in this case, this particular woman can be deemed to have chosen a termination if in fact she has not.
The three propositions leading to that conclusion are:
1. This particular woman has not made a choice for these circumstances.
2. No one else should have the right to choose for her.
3. The default in the absence of a properly authorised choice should be to continue life support for the duration of the pregnancy.
(1) is purely factual, and seems to me to be of central importance, even thought the writer of the article in the OP seems to have little interest in it. I could easily be wrong about this one, since the evidence I have is inference from what a secondary source fails to report.
(2) I am least sure of as a principle, and it seems that even if I am morally right about it, US law disagrees with me. That said, I strongly dislike the idea of a husband, or anyone else, having the right to decide whether a woman should or should not have a termination of pregnancy. I don't think that his authority (in the absence of an express delegation of the power to choose) should go that far.
(3) I'm most sure of this. The alternative - that if we don't have a positive choice the default is to allow woman and child to die - seems unconscionable. I can, however, see an argument that therefore we should stretch a point on my issue (2) to avoid being in the position of having to make decisions by default - that a husband's choice, though less than ideal, may be better than a mandated one.
*if I write 'child' or 'baby' to describe the unborn entity, this is not to be taken as implying that I think it is morally speaking a human being. Similarly if I describe it directly as a 'foetus' or obliquely as a 'pregnancy' this is not to be taken as implying that it is without moral worth. My own view is that an unborn child is not a human being in the moral sense, but that it is nonetheless an entity of moral significance - I therefore think abortion to be generally wrong, but not murder. Politically I'm pro-choice because I don't think that my moral views on this difficult subject should be binding on everyone else.
Posted by orfeo (# 13878) on
:
You might be most sure of (3), but it's a fairly fundamental principle of law that medical treatment without consent is assault.
The only reason one gets away temporarily with medical treatment that has not been consented to is a presumption that, in certain situations, a person would consent if they were able to.
That presumption is looking pretty damn shaky. The only reason it's holding up at all is your conviction that in a situation where the inability to obtain direct consent is ongoing, and indeed in this case permanent, you've decided that no-one else obtains responsibility for the decision.
[ 13. January 2014, 08:45: Message edited by: orfeo ]
Posted by Gee D (# 13815) on
:
In the ordinary course of similar events here, the position is reversed. A hospital seeks to end life support but the family disagrees. The answer is that the hospital makes an application to the State Supreme Court for an order that life support may - not must - be turned off. The judge then hears evidence to determine if that course is medically justified. A similar case went ahead not so long ago where the hospital wanted to give a blood transfusion to a 17 yr old Jehovah's Witness, where that course was clinically appropriate. The judge had to determine if the treatment could be forced on the boy against not just his parents' wishes, but his also, he being within months of becoming adult. The answer was that the treatment could be forced.
Very hard cases indeed, from conversation with more than one judge who's been required to make such a decision, very draining on the judge - even if the decision is one taken to preserve life.
Posted by L'organist (# 17338) on
:
From reading about the case on the web and in print it seems to me that the hospital, whether wittingly or no, are making an already appalling situation worse.
Regardless of the wishes of the woman, her husband or her parents, what about the couple's young child: his mother has died - that will be hard enough to explain: how then do they propose to tell him (if it happens) that his dead mother has been delivered of another baby?
I do not see how any church can support the position of the hospital since what it amounts to is the prevention of legal burial (or cremation) of a body - I think that is an offence in most places?
Posted by Chesterbelloc (# 3128) on
:
quote:
Originally posted by orfeo:
it's a fairly fundamental principle of law that medical treatment without consent is assault.
Is it still assault if the patient no longer has any consent to give or withhold?
quote:
Originally posted by orfeo:
The only reason one gets away temporarily with medical treatment that has not been consented to is a presumption that, in certain situations, a person would consent if they were able to. That presumption is looking pretty damn shaky.
Is it usual that a woman with a wanted pregnancy suddenly wants the child not to be born if she finds out she will not survive to see it? Do we have any reason to believe that this woman would not have wanted to save the child even if she herself could not be saved? Seems to me maternal instincts usually work in the other direction.
As for porridge and l'organist's concerns (spliced here): quote:
I keep wondering what the narrative will sound like when this child, if it survives more-or-less intact, begins to ask the inevitable question children ask about their own origins. “Yes, dear heart; you lived for 5 months in the womb of a dead woman.”
his mother has died - that will be hard enough to explain: how then do they propose to tell him (if it happens) that his dead mother has been delivered of another baby?
Are you actually maintaining that it would be manifestly better (for oneself or one's sibling) to be deprived of the chance to live at all rather than have to face the knowledge that one's mother was clinically brain-dead during the latter part of your (or their) gestation? Why, precisely? It is not so obvious to me, to say the least.
On the other hand, can you see no possible emotional downside to having to find out that after your mother died your father determined that your unborn sibling should also die rather than try to save them?
[ 13. January 2014, 15:54: Message edited by: Chesterbelloc ]
Posted by Porridge (# 15405) on
:
quote:
Originally posted by L'organist:
From reading about the case on the web and in print it seems to me that the hospital, whether wittingly or no, are making an already appalling situation worse.
Regardless of the wishes of the woman, her husband or her parents, what about the couple's young child: his mother has died - that will be hard enough to explain: how then do they propose to tell him (if it happens) that his dead mother has been delivered of another baby?
I do not see how any church can support the position of the hospital since what it amounts to is the prevention of legal burial (or cremation) of a body - I think that is an offence in most places?
This.
In addition, since medical bankruptcy continues to be a rising factor (and I'm not aware that ACA will necessarily change this) in the US's current robust increase in our homeless population, the existing family is being forced by the hospital's decision into an extremely precarious financial position. Assuming the hospital plans to bill this woman's survivors for the relevant costs involved in roughly 5 months of care plus obstetrical procedures likely to be complicated by the fact that the mother is dead and unable to assist in any way with the birth, I don't see how it can be legal for the hospital to compromise this family's future by demanding a procedure / series of procedures the family has rejected.
Posted by mousethief (# 953) on
:
quote:
Originally posted by Chesterbelloc:
quote:
Originally posted by orfeo:
it's a fairly fundamental principle of law that medical treatment without consent is assault.
Is it still assault if the patient no longer has any consent to give or withhold?
Is it still rape if the victim is unconscious? What's important in both cases is giving permission, not not denying permission.
quote:
Originally posted by Chesterbelloc:
Is it usual that a woman with a wanted pregnancy suddenly wants the child not to be born if she finds out she will not survive to see it?
This isn't that situation. This is a situation where a woman's body has to be kept artificially "alive" even though she's dead, for up to 5 months. Not a matter of a woman dying in childbirth, or having her baby removed by c-section after she's died in a car crash or something. The two are just about as dissimilar as you can get and still be talking about mothers, children, and mothers dying.
Posted by Chesterbelloc (# 3128) on
:
quote:
Originally posted by mousethief:
quote:
Originally posted by Chesterbelloc:
quote:
Originally posted by orfeo:
it's a fairly fundamental principle of law that medical treatment without consent is assault.
Is it still assault if the patient no longer has any consent to give or withhold?
Is it still rape if the victim is unconscious? What's important in both cases is giving permission, not not denying permission.
In this case I'm working on the premiss - along with most other posters - that the woman is dead. That makes a difference. There are things which it may be morally licit to do to someone's body which it would not be ethical to do them whilst thay lived. Many people would think it would not necessarily be wrong to use her liver to save another person's life without her previous explicit consent (if not contrary to her explicit veto). I'm pretty sure I've seen you argue in abortion threads that in problem pregnancy cases where it is only possible to save one life one should save the life that can in fact be saved. Why would you not apply this principle in this case, especially since one would not be killing one to save another?
quote:
Originally posted by mousethief:
quote:
Originally posted by Chesterbelloc:
Is it usual that a woman with a wanted pregnancy suddenly wants the child not to be born if she finds out she will not survive to see it?
This isn't that situation. This is a situation where a woman's body has to be kept artificially "alive" even though she's dead, for up to 5 months. Not a matter of a woman dying in childbirth, or having her baby removed by c-section after she's died in a car crash or something. The two are just about as dissimilar as you can get and still be talking about mothers, children, and mothers dying.
I'm afraid I don't see that. If in principle it would be licit to cut open her abdomen post-mortem to remove the child, why would it not be to keep her alive until the child was viable and then remove it? If this were an actively wanted preganancy - I get the impression it was, but I could be mistaken - it seem quite likely to me that the mother would want the child to survive her death by such means if necessary. Therefore, if your argument is based on repecting the autonomy or wishes of the mother, I'd have thought this would be of some relevance to you. What active harm do you believe is being done to the dead mother by keeping her body functioning long enough to give her child a chance of life?
I'm with Doublethink above: quote:
I am revolted by the idea of deliberately switching off the machine and allowing a living thing, especially a potential child, to suffocate and die in a corpse.
Are you not?
[ 13. January 2014, 19:15: Message edited by: Chesterbelloc ]
Posted by Curiosity killed ... (# 11770) on
:
There are possible difficulties of using her body as an incubator.
Firstly, how well will the mother's body work as an incubator? Are there things a living body provides that a dead body can't, for example, movement, sounds? How much of that is required for the normal development of a foetus? From a quick Google this has been done before, for a few days, not 5 months.
Secondly, 14 weeks gestation is only just outside the first trimester when women are advised not to inform anyone they are pregnant as the risk of miscarriage is highest. This pregnancy is in the early stages.
Thirdly, there are 10 weeks of keeping the mother alive to 24 weeks gestation when the foetus has a reasonable chance of life in an incubator. The next 10 weeks in an incubator aren't going to come free and the prognosis for babies born at 24 weeks gestation aren't great.
This article considers the costs and suggest that this could be the first million dollar baby - as in it's going to cost more than a million dollars for this baby to be born alive. Those of you who are saying that the family should be forced to keep the mother on life support to allow this child to be born, how many of you are going to help fund that million dollars?
Posted by Chesterbelloc (# 3128) on
:
To be fair, I am concentrating on the moral pros and cons of the case, not the practicalities - I'm just assuming that it is or might be possible to save the unborn in this way for the sake of the argument. Sometimes that is the only way to get to the moral nub of the problem. But of course this is a real case with real people.
In this case, when it comes to the money, if the hospital is insisting that it is not lawful (or not ethical) for it to abandon the treatment then the money's a moral red herring. Having said that, I would want to see the family helped with the cost so that it would not become oppressive to them and would in principle be prepared to help them out. Perhaps medical insurance should cover such eventualities. In Britain, I'm pretty sure this would be covered by the NHS.
Posted by Eliab (# 9153) on
:
quote:
Originally posted by orfeo:
There are several ways of looking at it, but I tend to think they all end up reaching the same point, that the husband is going to be in the best position to make decisions. If it's a decision about his wife's medical care (which is questionable if we regard her as dead), then it's his call. If it's a decision about the disposal of his wife's body, then it's his call. If it's a decision about the medical care of his child, then it's still his call.
It's not exactly like any of those decisions, though, and even if it were, a spouse's authority is only good up to certain limits. I recently had heart surgery – had something gone wrong, my wife would certainly have been consulted for her views, but she absolutely did not have the right to rush into the operating theatre once my heart had been opened up and demand that all further treatment cease.
Similarly, I don't have the right to neglect my children's health care. There are certainly circumstances where, if they are dangerously ill, if I refused to take them to a doctor or hospital I would go to jail. If this is a decision about care of a child (and I don't think it is – the foetus is not yet a 'child' in that sense in my view) then it doesn't follow that the sole remaining parent can require the child to die.
Essentially, this is a decision about whether to terminate a pregnancy. The circumstances are unusual, certainly, but ethically what we care about is what happens to the unborn entity, and that's the same thing we care about in the abortion question. The question here is whether a husband can decide that his wife must have an abortion, if her wishes on the subject are unobtainable.
The closest case to that I can think of is whether it would be right to allow a mentally incapable person's next of kin to require them to have an abortion. I'm extremely uncomfortable with that. I don't think anyone gets to have that degree of control over another person's body.
quote:
Either we accept that the wife has made a decision which covers this situation (in which case, go with her wish)
I completely agree with that part.
quote:
or we decide that she failed to address this situation and it's the husband's call
Why? Your post seems to be based on a pragmatic argument – a decision has to be made and no one would appear better placed to make it than the husband. That's a compelling argument, and I'd agree with it, if there had to be a positive decision. However there are some cases where there only needs to be a positive decision one way: a doctor doesn't need to make a positive decision not to perform an abortion. He or she will treat a pregnant patient on the working hypothesis that the pregnancy is to be preserved (that's why you get those warning signs outside of X-ray departments) and vary that only on express instruction.
If I'm right that this principle applies in the absence of the patient's express instruction, what moral right does a husband have to require the pregnancy to be terminated?
quote:
The proposition that the wife's decision did not cover her being pregnant is not, as a matter of logic, the same as a positive decision on her part not to have the machine turned off if she was pregnant. There is no warrant to imply a positive decision that she wanted to stay on the machine.
This is entirely true. We can't assume that we know what the woman would have chosen if she had foreseen this. There hasn't been a positive decision to stay on life support.
However we do know that she was 14 weeks pregnant when she lost mental capacity forever, and therefore at that point probably (though not certainly) knew she was expecting a child. She does not seem to have taken steps to end the pregnancy, and there is no reason to think the child was not wanted. Many (not all) women who are about three months pregnant have begun to think of the child as their baby, and to feel maternal love for it – and would experience a miscarriage as a bereavement.
We also know nothing of her moral and ethical views. I think we can tentatively guess that she was not extremely 'pro-life' in outlook (although those views are not exactly uncommon in Texas) since if she had been her husband would likely have known that, and we should assume he would have wanted to respect her wishes. What she would have wanted is therefore guesswork. However we should not ignore the fact that a decision to abort a wanted pregnancy is a momentous one, of incredible personal and moral significance. In my view, it is too great a decision for anyone else to make for her.
quote:
Originally posted by L'organist:
Regardless of the wishes of the woman, her husband or her parents, what about the couple's young child: his mother has died - that will be hard enough to explain: how then do they propose to tell him (if it happens) that his dead mother has been delivered of another baby?
Do you mean 'regardless of' in the sense: “here's an additional factor to take into account”, or literally, that regardless of the wishes the right thing to do is switch off life support for this reason, even if she would have chosen otherwise?
Because if you mean the first, I don't think that your “what about” is of much assistance in sorting out the question of who has authority to decide. It may, or may not, be a factor that the decision-maker takes into account, and it may be an additional reason to consider the decision to be an important one. If you mean the second (I don't think you do, but I'm not sure) I could not disagree more.
I don't, in fact, think it an especially difficult thing to explain: “Mum died – and that's very sad – but the doctors could keep her body alive for long enough for [you] / [your brother or sister] to be born. She loved you both and would have been proud of you”. It would be a hard thing to hear, certainly, but one thing that is true of every pregnancy in the world is that the child, if it survives long enough, will be badly hurt by something. That in this case we can foresee a hard, but probably bearable, experience is no reason to insist on abortion. We don't routinely advise single mothers to abort so as to avoid the 'Dad left us' conversation, and that's got to be at least as painful to hear.
quote:
Originally posted by Porridge:
Assuming the hospital plans to bill this woman's survivors for the relevant costs involved in roughly 5 months of care plus obstetrical procedures likely to be complicated by the fact that the mother is dead and unable to assist in any way with the birth, I don't see how it can be legal for the hospital to compromise this family's future by demanding a procedure / series of procedures the family has rejected.
Are spouses in Texas generally liable for each other's debts? If not, on what basis could a husband be liable for his wife's medical bills for care he has not agreed to?
Again, though, even if Texas law is so unjust in that particular, I don't see that it changes what the right thing to do is in this case – at worst it makes doing the right thing more costly.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Chesterbelloc:
quote:
Originally posted by orfeo:
it's a fairly fundamental principle of law that medical treatment without consent is assault.
Is it still assault if the patient no longer has any consent to give or withhold?
Well, you can assault people who have no capacity to consent, like those with limited mental capacity or children, so yes. If what you're really asking is it still assault if a person is dead, then no. And it's not medical treatment and she isn't a patient. I don't know what the laws on interfering with a dead body are.
As I said before, if we treat her as dead then it becomes about medical care of a child. An unborn at that. In which case normal principles would be the parents make the medical decisions. In which case there's one parent alive to make decisions. The father.
quote:
Originally posted by orfeo:
Is it usual that a woman with a wanted pregnancy suddenly wants the child not to be born if she finds out she will not survive to see it? Do we have any reason to believe that this woman would not have wanted to save the child even if she herself could not be saved? Seems to me maternal instincts usually work in the other direction.
Seems to me this is an almighty assumption on your part. It also seems to me that by even asking that question, you're making a presumption about what my own opinion on the best thing to do in this situation is, which misses the point. What I would do in this situation is completely irrelevant. It's not happening to me, so it's clearly not my decision make.
Also, what does 'is it usual' even mean in a situation which everyone acknowledges is incredibly rare? There's about 30 cases in the last 30 years, and you want me to comment on trends?
The reason the presumption that she would agree to treatment is shaky has nothing to do with what is 'usual', it is has to do with (1) what is known about HER actual wishes, and (2) if we operate on the basis that she's dead, what is known about her husband's actual wishes. I've already made that pretty clear, I think. A case where the wife hadn't made a living will or where the husband had expressed a different view would be a completely different case. By talking about what is 'usual', you're basically suggesting that it doesn't matter at all what the individual people in the individual case indicate they want.
[ 13. January 2014, 20:55: Message edited by: orfeo ]
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Eliab:
That's a compelling argument, and I'd agree with it, if there had to be a positive decision.
Mousthief has already addressed you on this, and I agree with him. The distinction you're attempting to make between a 'positive' decision and a decision to keep doing what is currently being done is illusory.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Eliab:
In my view, it is too great a decision for anyone else to make for her.
But she is dead.
There's a profound fallacy in suggesting that the principle 'we shouldn't make decisions for other people' applies here. To put it bluntly, she's not a person anymore. Not in legal terms, anyway.
You're right, my viewpoint is pragmatic, but that's for a good reason. The idea that no-one is in a position to make a decision is just so fundamentally problematic in the world of law because of the difficulties it creates if people agree that action is required. You're comfortable with it right now because you don't think any 'action' is required - but that's because you've decided that around-the-clock care and monitoring isn't 'action'.
At the VERY least, you'd have to say that a court is in a position to make a decision to avoid that knot.
It is, I suppose, possible that Texas law is so horrendously drafted that no-one, anywhere, has the slightest authority to do anything regardless of the need to do anything. But I certainly would consider that bad drafting. I'm well-versed in the perils of passive voice, where people pronounce that 'this ought to be done' without identifying who has the right or duty to do it.
Posted by Doublethink (# 1984) on
:
I am inclined to think that if you are going to abort, you should kill the foetus as quickly and cleanly as possible - not leave it in the corpse after the machine is switched off and hope it's quick.
Posted by Chesterbelloc (# 3128) on
:
quote:
Originally posted by Eliab:
I don't, in fact, think it an especially difficult thing to explain: “Mum died – and that's very sad – but the doctors could keep her body alive for long enough for [you] / [your brother or sister] to be born. She loved you both and would have been proud of you”. It would be a hard thing to hear, certainly, but one thing that is true of every pregnancy in the world is that the child, if it survives long enough, will be badly hurt by something. That in this case we can foresee a hard, but probably bearable, experience is no reason to insist on abortion. We don't routinely advise single mothers to abort so as to avoid the 'Dad left us' conversation, and that's got to be at least as painful to hear.
This.
Posted by Chesterbelloc (# 3128) on
:
quote:
Originally posted by orfeo:
The reason the presumption that she would agree to treatment is shaky has nothing to do with what is 'usual', it is has to do with (1) what is known about HER actual wishes, and (2) if we operate on the basis that she's dead, what is known about her husband's actual wishes. I've already made that pretty clear, I think. A case where the wife hadn't made a living will or where the husband had expressed a different view would be a completely different case. By talking about what is 'usual', you're basically suggesting that it doesn't matter at all what the individual people in the individual case indicate they want.
What I'm "basically saying" is that - especially considering uncertainty about what she herself may have wanted (i.e., if it was indeed a wanted pregnancy) - the decision of the father (a grief-striken husband) should not on its own count as constitutive of the right. There is another entity here to whom we owe consideration - and he or she is the weakest person in the whole scenario, the entirety of whose interests hang on this decision.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Chesterbelloc:
quote:
Originally posted by orfeo:
The reason the presumption that she would agree to treatment is shaky has nothing to do with what is 'usual', it is has to do with (1) what is known about HER actual wishes, and (2) if we operate on the basis that she's dead, what is known about her husband's actual wishes. I've already made that pretty clear, I think. A case where the wife hadn't made a living will or where the husband had expressed a different view would be a completely different case. By talking about what is 'usual', you're basically suggesting that it doesn't matter at all what the individual people in the individual case indicate they want.
What I'm "basically saying" is that - especially considering uncertainty about what she herself may have wanted (i.e., if it was indeed a wanted pregnancy) - the decision of the father (a grief-striken husband) should not on its own count as constitutive of the right. There is another entity here to whom we owe consideration - and he or she is the weakest person in the whole scenario, the entirety of whose interests hang on this decision.
The law generally doesn't condition decision-making powers on the basis of 'only make decisions that we approve of'. The law has to operate in a vast array of situations, not just weird tragic pockets like this situation.
As to consideration of the fetus - certainly, consider it. Isn't that precisely what everyone's already doing? But it's fairly well established that consideration of the fetus isn't a trump card. Nor is the welfare of others in general. If I know I'm going to die without treatment, I'm not obliged to keep undergoing treatment in order to save my relative because I'm a compatible donor for some operation she needs. It might be NICE if I do so, but I'm not obliged. Nor am I obliged to agree to the donation of my organs in the event of my brain-death.
Posted by Curiosity killed ... (# 11770) on
:
The other likely scenario is that they keep the mother on life support as an incubator and one of the possible things goes wrong, eg kidney failure or infection, meaning that a couple of months down the line the foetus has died anyway and there are still horrendous medical bills to be paid somewhere.
Cynically I wonder if one of the doctors involved in this case wants to research what happens in a situation like this.
Posted by Chesterbelloc (# 3128) on
:
quote:
Originally posted by orfeo:
As to consideration of the fetus - certainly, consider it. Isn't that precisely what everyone's already doing?
I admit to struggling to see how those advocating that the machine should be switched off and the fetus allowed to die simply because that's what the father wants are considering the fetus in any meaningful sense. What kind of genuine consideration of what is in the interests of that fetus - who loses everything by such a decision - is going on in that case? Isn't that rather a dismissal of the interests of the fetus?
Posted by Charlie-in-the-box (# 17954) on
:
She is dead. They are keeping her plugged in knowing that she is dead. Her fetus went without oxygen for over an hour (as did she) and was flooded with tons of drugs and injections to try to save the mom. Any other woman, of her gestation, would have died and the baby with her. The child cannot survive (not with our technology) and is mostly likely irreversibly damaged. She had directed that she NOT be on life support and this is in direct violation to her wishes. She is dead, not in a coma, and while this is a horrible tragedy, she should be unplugged from life support, per her wishes. If she had other ideas, she would have verbalized them.
Posted by Doublethink (# 1984) on
:
What is the source for saying they both went without oxygen for an hour ?
(Also, thought experiment, would it be legitimate to transplant her womb + child, then switch off the machine ? http://www.bbc.co.uk/news/health-25716446 . )
[ 13. January 2014, 23:28: Message edited by: Doublethink ]
Posted by Lamb Chopped (# 5528) on
:
I am as certain as a non-lawyer can be that no court will require a family to pay medical bills for treatment that has been imposed over a clear refusal. I doubt the hospital would be fool enough to send such bills to collection, given the resulting press. I suspect they are planning other ways of covering the costs.
As for having to raise a no-longer wanted child, he has the right to give the child up foradoption (yes, i know that route's not all sujshine and roses, but still...)) If he finds its possible disabilities intolerable, he can do so. It would be sad, but at least the child wouldn't be dead.
It's an awful situation, but I can't see pulling the plug making things better. Two deaths instead of one.
Posted by art dunce (# 9258) on
:
quote:
Originally posted by Doublethink:
What is the source for saying they both went without oxygen for an hour ?
The paramedics who took her from the house informed her family and the receiving staff at the hospital that she had been without oxygen for as long as an hour.
Posted by art dunce (# 9258) on
:
Sorry for double post but they used extraordinary measures including drugs, shocks etc to restart her heart once she arrived and the fetus underwent all of that as well.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Chesterbelloc:
quote:
Originally posted by orfeo:
As to consideration of the fetus - certainly, consider it. Isn't that precisely what everyone's already doing?
I admit to struggling to see how those advocating that the machine should be switched off and the fetus allowed to die simply because that's what the father wants are considering the fetus in any meaningful sense. What kind of genuine consideration of what is in the interests of that fetus - who loses everything by such a decision - is going on in that case? Isn't that rather a dismissal of the interests of the fetus?
Well, losing 'everything' means losing life, and I don't believe life is everything but I do believe life is very important...
Nevertheless, regardless of what you or I might think, the law does not think that life is an absolute trump card. No-one thinks losing a life is a great thing, but there are any number of situations where the law says that a life doesn't have to be maintained if the cost is too much (not financial cost, I'm using 'cost' in a far more abstract sense).
As an example off the top of my head, I am legally entitled to cost you your life in order to save my own or someone else's. I appreciate that's not the situation here, but the point I'm making is that 'it will cost the fetus everything' isn't inherently a reason why the decision can't happen. Not in law, anyway. Whether or not it's a complete bar in morals is a far more personal question.
Posted by orfeo (# 13878) on
:
I'm having a look at what I can find on the Advance Directives Act, and it does look to me as if the hospital might be misinterpreting it or lifting a single provision out of context.
The Wikipedia page on it is here. The essence of it is that the Act is intending to deal with situations where the patient/family wants to CONTINUE care and the medical staff wnat to END it. But now it's being used in the reverse situation.
The text of the law is here.
My preliminary view is that the intention of the law is actually to say 'pregnancy is an exception to the rights of doctors to withdraw treatment', but it's being read as 'pregnancy is an exception to the rights of patients to decide they want treatment withdrawn'.
EDIT: It also looks to me from other provisions that 'life-sustaining treatment' is supposed to be focused on sustaining the life of the woman. And she has no life to sustain.
[ 14. January 2014, 01:33: Message edited by: orfeo ]
Posted by orfeo (# 13878) on
:
Now I'm not even certain of my preliminary opinion...
What I am sure of is that it's not particularly brilliant drafting and/or interpretation. I think the biggest problem here is the notion of 'life-sustaining treatment', if Marlise Muñoz is legally dead.
It would really be in everyone's interest to get a judge's ruling on this.
[ 14. January 2014, 01:41: Message edited by: orfeo ]
Posted by Palimpsest (# 16772) on
:
quote:
Originally posted by orfeo:
Now I'm not even certain of my preliminary opinion...
What I am sure of is that it's not particularly brilliant drafting and/or interpretation. I think the biggest problem here is the notion of 'life-sustaining treatment', if Marlise Muñoz is legally dead.
It would really be in everyone's interest to get a judge's ruling on this.
Looking at the Wikipedia article, it seems largely dealing with the reverse case, the hospital wanting to discontinue treatment and the patient's family wanting to continue it.
Who would have standing to get a Judicial ruling on the case to challenge the hospital's actions?
Posted by mousethief (# 953) on
:
quote:
Originally posted by orfeo:
What I am sure of is that it's not particularly brilliant drafting and/or interpretation. I think the biggest problem here is the notion of 'life-sustaining treatment', if Marlise Muñoz is legally dead.
Reminds me of Desiato Hotblack from H2G2, spending a year dead for tax purposes, with his "death support system."
quote:
Originally posted by Palimpsest:
Who would have standing to get a Judicial ruling on the case to challenge the hospital's actions?
Her husband, of course.
Posted by Palimpsest (# 16772) on
:
quote:
Originally posted by Lamb Chopped:
I am as certain as a non-lawyer can be that no court will require a family to pay medical bills for treatment that has been imposed over a clear refusal. I doubt the hospital would be fool enough to send such bills to collection, given the resulting press. I suspect they are planning other ways of covering the costs.
You have a lot more faith in the hospitals sense of shame then I do. Perhaps this recent case in the next state over might change your mind.
The police arrested someone as suspicious and took him to an adjoining country emergency room for multiple rectal cavity searches and a colonoscopy despite his explicit refusal. Police investigate drug suspect
They didn't find any, and he's suing. The hospital is still billing him for the procedure.
Posted by orfeo (# 13878) on
:
Yes, Palimpsest, I thought of that same situation because someone (Mere Nick) I think raised it over on the Hell board.
A truly perverse situation where the police said they'd pay the hospital bill if the person consented, but the person would have to pay the bill if the procedure wasn't consented to. How anyone can think that's a permissible state of affairs is beyond me.
[ 14. January 2014, 06:14: Message edited by: orfeo ]
Posted by North East Quine (# 13049) on
:
quote:
Originally posted by Doublethink:
(Also, thought experiment, would it be legitimate to transplant her womb + child, then switch off the machine ? http://www.bbc.co.uk/news/health-25716446 . )
Robert Winston was interviewed about this Swedish medical development on Radio 4 yesterday and he emphasised that womb transplant is at a very early stage of development and that, so far, no transplanted womb had been able to sustain a pregnancy for more than a few days.
Also, the transplant would have to be into a close female relative.
This may be interesting as a thought experiment, but it may be years away from being an option.
Posted by Eliab (# 9153) on
:
quote:
Originally posted by orfeo:
The distinction you're attempting to make between a 'positive' decision and a decision to keep doing what is currently being done is illusory.
I don't think it is, but in any case, those aren't the categories that are critical to my argument.
The point I need to establish is that there are some decisions that absolutely require a actual choice to be made by the patient, or someone authorised by the patient, and otherwise the thing just does not happen because no one else has the right to do it, no matter how much they think it a good idea.
There's nothing in principle that makes such a rule impractical, and such rules can and do exist. Two illustrations (not exact analogies): organ donation and assisted suicide. There's no difficulty in principle with having a rule that unless a patient or their next of kin positively consents to the use of organs, they simply can't be used. In the absence of that positive choice the default is 'don't do it'. It would also be possible to have legal voluntary euthanasia that is permissible only if the patient him/her-self has made a positve and informed decision to die, and in the absence of that, no matter how distressing the patient's condition or how confidently their doctors and relatives think they would be better off with the final injection, killing them remains illegal.
I'm saying that 'having an abortion' ranks somewhere between 'donating your liver' and 'choosing to have an assisted death' in terms of momentous decision making, and like those other two decisions, if they are permitted at all, should only ever be done with actual consent. You'll have noticed that I was willing to permit next-of-kin's consent for organ donation but not assisted dying (I said they weren't exact analogies) - the point of similarity with what I think should happen in this case is that these are things that need to be chosen. It isn't right to say that it is 'just as much of a choice' not to kill a terminally ill patient or decline to use a dead person's organs - not doing those things does not require the doctor (or anyone else) to say "I think it best not to do that", but only "I do not have authority to do that (even if I think it best)". That is not an illusory distinction.
quote:
Originally posted by orfeo:
There's a profound fallacy in suggesting that the principle 'we shouldn't make decisions for other people' applies here. To put it bluntly, she's not a person anymore. Not in legal terms, anyway.
In that case, why is it that one thing we both definitely agree on is that if we do have a clear expression of her wishes which can be seen to cover this particular case, then that would be definitive?
We both want an outcome which she would have chosen. The difference between us (up til now) I had assumed to be that you were willing to accept the husband as her proxy decision-maker, and I was not (while conceding that if a proxy decision-maker is needed, it should be him).
I'm even more unhappy with accepting the husband as a primary decision-maker. She may be dead, but that does not change the fact that this is her pregnancy, not his. If he makes the call, the only principled defence for that is that he makes it on her behalf, as her representative.
quote:
You're right, my viewpoint is pragmatic, but that's for a good reason. The idea that no-one is in a position to make a decision is just so fundamentally problematic in the world of law because of the difficulties it creates if people agree that action is required. You're comfortable with it right now because you don't think any 'action' is required - but that's because you've decided that around-the-clock care and monitoring isn't 'action'.
The law can and does cope with cases where no decision can be made. It happens not infrequently in property and trust cases. The distinction I am making (the power to take one of the options needs to be positively exercised whereas the other option will happen by default) is an extremely common get out.
Obvious example in the UK is jointly owned property. At common law (statutory provisions complicate it a bit) joint owners hold land on a 'trust for sale', with an obligation to sell and a jointly-exercised power to postpone sale. Suppose one of them wants to sell and the other doesn't - in that case the power to postpone sale can't be exercised, so the obligation to sell becomes binding.
That's even less of an analogy than the illustrations above. I'm not comparing having an abortion to a property dispute. The point is that the rule: "X must be chosen, otherwise Y" is not, in principle, legally unworkable, and can actually be pretty good at resolving the 'no competent decision maker' situation.
quote:
You're comfortable with it right now because you don't think any 'action' is required - but that's because you've decided that around-the-clock care and monitoring isn't 'action'.
It's clearly 'action'. It is, though, action which is consequent on an unchosen state. That's the important point. Terminating the pregnancy is not in the same category because it requires a choice which (it seems to me, on limited information) we cannot say that the person with primary authority has made.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Eliab:
There's no difficulty in principle with having a rule that unless a patient or their next of kin positively consents to the use of organs, they simply can't be used.
Surely you realise that as soon as you've thrown 'next of kin' in there, you're on my territory not yours? Nowhere have I suggested that some kind of random people can make medical decisions on these issues. The issue is entirely: if the patient themselves is incapable of making a decision, who else is empowered?
Your answer in the case at hand appears to be no-one. MY answer is 'probably the next of kin, otherwise a court'. So presenting organ donation as one of your examples makes no sense.
Posted by North East Quine (# 13049) on
:
Originally posted by Lamb Chopped:
quote:
As for having to raise a no-longer wanted child, he has the right to give the child up foradoption (yes, i know that route's not all sujshine and roses, but still...)) If he finds its possible disabilities intolerable, he can do so. It would be sad, but at least the child wouldn't be dead.
How much support (social services, social security etc) is there in America for a single parent of one child to raise a second, disabled child? Is it that he no longer wants the second child, or is it that he doesn't think himself capable of continuing to raise his existing child, and a second, possibly severely disabled child?
If the child were severely disabled, (and it's hard to imagine that this extremely abnormal pregnancy is going to result in a "normal" child) how easy is it to find adoptive parents in America?
Posted by orfeo (# 13878) on
:
Missed the edit window...
And the other thing I would say is that any analogies that aren't about something that could be classed as medical treatment aren't really to the point. Yes, there are rules about not killing people and so on, but they are different rules at a very basic level.
The fact is, an intervention is happening in order to keep the fetus alive and to keep the mother... well, in some degree 'alive' but it gets into very awkward and tricky areas as to precisely what state she's in. But an intervention is happening. That intervention is known as TREATMENT.
I can't understand your proposition that no-one has actively made a decision for precisely that reason. The woman is NOT being left alone in the way that some of your examples would have a person just being left alone. If she was left alone, she would, we all think, become completely dead with none of her organs functioning.
A decision is being made to do something to her. That decision is continually being re-made, in effect. The very law that the hospital is pointing is a law that, in their opinion, forbids them to stop doing something, not a law that forbids them from starting to do something. It IS illusory in my opinion to separate the decision to 'keep treating her' from the decision to 'stop treating her', because 'being treated' is not the woman's natural state. Her natural state is, to put it bluntly, being left to die.
[ 14. January 2014, 08:37: Message edited by: orfeo ]
Posted by Jane R (# 331) on
:
Chesterbelloc: quote:
In Britain, I'm pretty sure this would be covered by the NHS.
In Britain, the life support would have been turned off as soon as brain death had been established and the consent of her family had been obtained. The cutoff point for making heroic efforts to save a foetus is 20 weeks gestation, I believe (IANAD; it could be 24), and she was in the first trimester when she died. Babies are considered premature if they are born before 37 weeks.
The NHS does not have an unlimited pot of money to squander; nor does it have a large number of surplus hospital beds. Spending vast sums of money on keeping a corpse in an intensive care bed for 5 months on the offchance that her baby is still alive in there and will emerge unscathed is simply not feasible. There are other women and other babies in need of care, and medical staff generally prefer to fight battles they have a sporting chance of winning.
It is only fair to add that in Britain we have free antenatal and postnatal care and pregnant women are very carefully monitored for health problems (if they bother to turn up to their appointments, that is). So if she died from something like maternal diabetes or eclampsia it would have been picked up much earlier over here by her GP or the midwife. If they thought she needed to be admitted to hospital the hospital would have been quite happy to have her there (alive) for as long as necessary; any drugs she needed would have been supplied free of charge; if she needed a Caesarian, that would have been free too.
Yes, this is a horrible situation, but keeping her body on life support for 5 months isn't improving it.
And just for the record; I am a mother too.
Posted by Doublethink (# 1984) on
:
What is interesting in there - is that there is somekind of clinical limit re the foetus, which is presumably based on some level of evidence. Even so, I would hope they would kill the foetus before switching off machine.
It is known that, at that stage of development, they react to aversive stimuli and they should minimise its suffering.
[ 14. January 2014, 16:30: Message edited by: Doublethink ]
Posted by Doublethink (# 1984) on
:
quote:
Originally posted by Jane R:
In Britain, the life support would have been turned off as soon as brain death had been established and the consent of her family had been obtained. The cutoff point for making heroic efforts to save a foetus is 20 weeks gestation, I believe (IANAD; it could be 24), and she was in the first trimester when she died. Babies are considered premature if they are born before 37 weeks.
You may be mistaken;
quote:
2.5. A foetus is deemed to be viable after 24 weeks gestation. Ultrasound examination
is the appropriate technique to establish gestational age.
2.6. If the foetus is thought to be viable (at or close to 24 weeks), the intention should be
to deliver a live baby. This decision should be made in conjunction with the
specialist practitioner in obstetric medicine and the patient’s family member(s).
2.7. If there is no prospect that continued active treatment of the donor could allow the
foetus to attain 24 weeks, then organ donation may continue with the agreement of
the patient’s family member(s). The foetus would inevitably die.
This is a document on organ donation, but the impression I get is that they would consider continuing active treatment *with the consent of the family* if they thought there was a chance of getting the foetus to viability.
I note this woman was 14 weeks pregnant when she died, but the foetus is now at 20 weeks gestation - it maybe that this case will change the understanding of what it means to have a reasonable chance of attaining 24 weeks gestation. The feotus is not yet a prematurely born baby, it is still gestating (they think). I presume someone has done an ultrasound and checked if it is still growing, if it were brain dead it presumably would not grow in utero because the brain would not send out the correct hormonal signals.
Posted by Doublethink (# 1984) on
:
Closest equivalent case.
Posted by Lamb Chopped (# 5528) on
:
Nor would it have a heartbeat or make voluntary movements--and I'm sure they've checked for all this stuff.
Posted by Chesterbelloc (# 3128) on
:
quote:
Originally posted by Doublethink:
Closest equivalent case.
Enormously edifying - where there's life there's hope, and all that.
Posted by art dunce (# 9258) on
:
Looks like a judge will decide.
Posted by Jane R (# 331) on
:
Doublethink, re 20 vs 24 weeks' gestation: quote:
You may be mistaken;
I couldn't remember. I do remember there was talk about making it 20 weeks a few years ago, but I couldn't remember the outcome and checking the BBC website didn't help.
Whatever stage of development the foetus is at now, when the mother died it was not viable and (bearing in mind that IANAD) the NHS would have complied with the family's wishes and turned off life support.
Posted by Jade Constable (# 17175) on
:
quote:
Originally posted by Anglo Catholic Relict:
quote:
Originally posted by mousethief:
The question is, why can't you see the similarity?
Probably because I am a mother.
Since when did being a mother stop one from applying logic?
A foetus is not a child.
Posted by Jade Constable (# 17175) on
:
This case makes clear that Texas regards women as living incubators for The Precious Foetuses and not human beings.
Why is a foetus being treated as a person? It's not.
Given that the anti-choice brigade only value foetuses and not actual living children, it will be interesting to see the reaction to the state paying for the child's medical care, if it is born.
Posted by Gee D (# 13815) on
:
quote:
Originally posted by Jade Constable:
Given that the anti-choice brigade only value foetuses and not actual living children, it will be interesting to see the reaction to the state paying for the child's medical care, if it is born.
(my emphasis)
Any evidence for this? And any suggestions as to whose choice is to be indisputably determinative?
Posted by L'organist (# 17338) on
:
Regardless of whether or not a decision is made to turn-off life support machines, there are some big questions the hospital needs to address, bearing in mind where this is taking place:
1. Is the hospital full prepared to fund for itself the cost of keeping this dead woman's body on life-support?
2. If the pregnancy progresses, is the hospital (or its insurers) prepared to pay the cost of delivering the infant?
3. Since it is highly likely that any child produced in this way is going to need special care, are hospital and insurers prepared to pay for that as well?
4. Since the hospital is, in effect, forcing the continuation of the pregnancy against the wishes of the family, have the hospital and insurers agreed who will be responsible for the cost of bringing up any child?
This last is particularly serious if the child has continuing special needs.
Posted by Jane R (# 331) on
:
I think there's another one, too:
5. What is their ethical justification for subjecting the foetus to an EXPERIMENTAL treatment for which its only surviving parent has refused consent? Because it is experimental. Nobody knows what will happen.
There are some situations where parental refusal of medical treatment should be overridden, but I don't think this is one of them.
Posted by art dunce (# 9258) on
:
quote:
Originally posted by L'organist:
Regardless of whether or not a decision is made to turn-off life support machines, there are some big questions the hospital needs to address, bearing in mind where this is taking place:
1. Is the hospital full prepared to fund for itself the cost of keeping this dead woman's body on life-support?
2. If the pregnancy progresses, is the hospital (or its insurers) prepared to pay the cost of delivering the infant?
3. Since it is highly likely that any child produced in this way is going to need special care, are hospital and insurers prepared to pay for that as well?
4. Since the hospital is, in effect, forcing the continuation of the pregnancy against the wishes of the family, have the hospital and insurers agreed who will be responsible for the cost of bringing up any child?
This last is particularly serious if the child has continuing special needs.
Especially since being declared brain dead is considered legally deceased, and so there is no longer insurance coverage , other than burial insurance, available.
Posted by Jade Constable (# 17175) on
:
quote:
Originally posted by Gee D:
quote:
Originally posted by Jade Constable:
Given that the anti-choice brigade only value foetuses and not actual living children, it will be interesting to see the reaction to the state paying for the child's medical care, if it is born.
(my emphasis)
Any evidence for this? And any suggestions as to whose choice is to be indisputably determinative?
US anti-choicers are overwhelmingly anti-welfare - see almost all of the modern Republican Party.
Posted by Gee D (# 13815) on
:
That - even if the broad brush you apply in your answer were correct - still does not lead to the conclusion you asserted,
Posted by Lamb Chopped (# 5528) on
:
And I'm getting damned tired of being told it's impossible for anyone to care about both born and unborn life. Guess I fucking don't exist then.
And no, getting patted on the head and told "but you're special" doesn't make it better.
Posted by L'organist (# 17338) on
:
posted by Lamb Chopped
quote:
And I'm getting damned tired of being told it's impossible for anyone to care about both born and unborn life.
Probably as fed up and pi**ed off as I get when people assume that to be pro-choice equals having no care, concern or respect for the unborn.
quote:
Guess I fucking don't exist then.
And no, getting patted on the head and told "but you're special" doesn't make it better.
And as pi**ed off as I get when people make wild accusations that to be pro-choice automatically makes one anti people with disability.
Care, concern and respect has to be applied to ALL parties in this case: and that includes the known and declared wishes of the dead woman, her husband and her parents, whereas the pro-life lobby and hospital are only considering the foetus.
Posted by Gee D (# 13815) on
:
quote:
Originally posted by Lamb Chopped:
And I'm getting damned tired of being told it's impossible for anyone to care about both born and unborn life. Guess I fucking don't exist then.
And no, getting patted on the head and told "but you're special" doesn't make it better.
You're not alone there. We, too, are of the left and generally opposed to abortion.
That has a long history here. Just as there were strong links between the British Labour Party and the Methodist Church/Church of Scotland, the dominant wing of Labour Party here was closely connected with the Catholic Church until well into the 1960s. The social policies of one informed those of the other.
Posted by Soror Magna (# 9881) on
:
Fetus ‘distinctly abnormal’
However, the most interesting part to me is this:
quote:
... The statement pushed back against the hospital’s interpretation of Texas law, saying if the law were applied in the way the hospital is treating Muñoz, “it would be incumbent upon all health care providers to immediately conduct pregnancy tests on any woman of child bearing age who becomes deceased, and upon determining the deceased body was pregnant, hooking the body up to machines in an attempt to continue gestation. Surely, such a result was never intended nor should it be inferred.” ...
Which is exactly what I have been wondering all along ...Is Texas really scooping up every recently-deceased pregnant woman and resuscitating and keeping them on life support until they can deliver? And who's paying to maintain all those "incubators"? It reminds me of the creepy Battlestar Galactica episode, "The Farm":
quote:
... Starbuck discovers a room with women wired up, with tubes leading into them, stuck in there for the sole purpose of having babies. It's an horrific scene, as Starbuck realises that the women have been effectively raped to make babies ...
Posted by art dunce (# 9258) on
:
It reminded me of the Axlotl tanks from "Dune". It's all ghoulish.
[ 24. January 2014, 04:14: Message edited by: art dunce ]
Posted by mousethief (# 953) on
:
From a Catholic POV, if they let this poor woman's body die, wouldn't the loss of the foetus be acceptable under "double effect"?
Posted by Soror Magna (# 9881) on
:
According to tez intrawebz, this is a publicly-funded hospital. So they're taking their orders from Gov. Rick "oops" Perry, not Pope Francis.
Posted by Doublethink (# 1984) on
:
quote:
Originally posted by mousethief:
From a Catholic POV, if they let this poor woman's body die, wouldn't the loss of the foetus be acceptable under "double effect"?
I believe so.
Posted by Porridge (# 15405) on
:
Great. Let's have Gov. Perry foot the bill, then.
Posted by art dunce (# 9258) on
:
NEW: Hospital agrees woman brain dead since November 28, fetus not viable, court papers say.
Why on earth have they put her family thought this?
Posted by Doublethink (# 1984) on
:
Idiocy ?
Posted by Doublethink (# 1984) on
:
Decision made.
Posted by orfeo (# 13878) on
:
What I want to know is, who the hell decided they were giving this woman "life-sustaining treatment" in the first place?
Who in the hospital? A doctor? An administrator? A lawyer?
Posted by Chesterbelloc (# 3128) on
:
quote:
Originally posted by Doublethink:
quote:
Originally posted by mousethief:
From a Catholic POV, if they let this poor woman's body die, wouldn't the loss of the foetus be acceptable under "double effect"?
I believe so.
Only if the he following criterion is deemed to have been met: quote:
the good effect outweighs the bad effect in circumstances sufficiently grave to justify causing the bad effect and the agent exercises due diligence to minimize the harm.
Given that the decision directly results in a further (at least potentially preventable) death and that the woman herself is beyond further harm, I'll bet that there's no consensus that this criterion has been met. If the child could be saved and enabled to live a decent life, would the father's wishes really outweigh that good?
As to the fetus having been deemed "not viable", I wonder if that means anything more than that if removed from its mother's womb right now it would not survive.
I admit I felt a grim shudder when reading this setion of the news report: quote:
[F]amily lawyer, Jessica King, said, "Pregnant women die every day. They die in car accidents, of heart attacks and other injuries. And when they die, their fetus dies with them. It's the way it's always been and the way it should be."
Posted by art dunce (# 9258) on
:
“Even at this early stage, the lower extremities are deformed to the extent that the gender cannot be determined,” King and Janicek said.
“The fetus suffers from hydrocephalus [water on the brain]. It also appears that there are further abnormalities, including a possible heart problem, that cannot be specifically determined due to the immobile nature of Mrs. Muñoz’s deceased body,” the statement said.
Not viable.
Posted by Chesterbelloc (# 3128) on
:
Do you mean it could not be brought to term without dying (or without such severe disability that it would die soon after)? Or do you mean that it would not be worth saving given the disabilities it may suffer?
Posted by Curiosity killed ... (# 11770) on
:
Hydrocephalitis is not good news and may be a sign that there is an infection in the uterus which is affecting the foetus, and the prognosis is poor.
The heart condition and lower limb deformation may well have existed before the mother died
quote:
“The majority of organ development occurs in the first trimester, but from 14 weeks on, a lack of oxygen to the developing fetus is obviously a significant problem,” said Ashton, who has not treated Munoz but has treated pregnant patients on life support. “But the severity of these physical anomalies suggest the possibility of an underlying chromosomal abnormality in addition. It is very possible that if this is the case, the two factors taken together could result in a situation that is incompatible with survival.”
[ 25. January 2014, 18:37: Message edited by: Curiosity killed ... ]
Posted by L'organist (# 17338) on
:
Chesterbelloc
This woman DIED back in November.
She was taken to hospital by ambulance having been found unconscious at home and despite the best efforts of doctors in the Emergency Room her brain stem died.
The brain stem, among other things, controls breathing. Dead brain stem = no breathing.
So what happened is that SOMEONE in the hospital - we're not being told who - decided to put a DEAD woman onto life support.
But in this instance it wasn't "life supporting" at all - what it was trying to do was to bring back to life someone who had already died.
Anyone, ANYONE, who proposes that she should be kept on "life" support is in fact asking that a corpse have blood oxygenated and circulated around it - AND THAT IS NOT LIFE.
This woman is dead: the foetus she is carrying is malformed: if they cannot tell to what extent it is likely to be because it is not moving around sufficiently for them to tell - another indicator of a severely malformed foetus.
What you would seem to be questioning is whether or not it isn't possible for this dead woman to be kept in hospital as some sort of incubator for a foetus with physical malformation and hydrocephaly that is likely to be an indicator of serious neurological deficit, and therefore more than likely to either be born dead or without the possibility of independent life.
This goes way over the line of being "pro-life" - this is refusal to accept facts to the point where sanity must be questioned. And to expect an already grieving family to have to go along with this is not just sick but un-christian.
Posted by PataLeBon (# 5452) on
:
quote:
Originally posted by Chesterbelloc:
I admit I felt a grim shudder when reading this setion of the news report: quote:
[F]amily lawyer, Jessica King, said, "Pregnant women die every day. They die in car accidents, of heart attacks and other injuries. And when they die, their fetus dies with them. It's the way it's always been and the way it should be."
I read it as asking why the hospital was playing God. She had something fatal happen to her unexpectedly when she was 3 months pregnant.
The hospital for the last 2 months have prevented nature and what some people may believe is God's Will from taking it's course.
It goes back to the line between us taking actions that help God and taking actions against the will of God.
What happened to this woman was an act of God. What happened afterwards is of your (and the family's) own interpretation. I'm very loathe (in almost any circumstance) to go against a families religious beliefs.
Posted by Palimpsest (# 16772) on
:
For those who didn't see the news, the hospital decided not to appeal the court ruling. Life Support was terminated at 11:30 Sunday and the family is now preparing the body to be laid to rest.
Posted by Jane R (# 331) on
:
![[Votive]](graemlins/votive.gif)
Oh, and what L'organist and PataLeBon said.
Posted by Boogie (# 13538) on
:
quote:
Originally posted by Palimpsest:
For those who didn't see the news, the hospital decided not to appeal the court ruling. Life Support was terminated at 11:30 Sunday and the family is now preparing the body to be laid to rest.
May they both rest in peace.
I hope whoever decided to use her dead body in this way has learned their lesson ![[Frown]](frown.gif)
Posted by Gee D (# 13815) on
:
Prayers for the mother and the chid; a sad outcome.
[ 27. January 2014, 09:29: Message edited by: Gee D ]
Posted by mdijon (# 8520) on
:
quote:
Originally posted by L'organist:
This woman DIED back in November.
She was taken to hospital by ambulance having been found unconscious at home and despite the best efforts of doctors in the Emergency Room her brain stem died.
The brain stem, among other things, controls breathing. Dead brain stem = no breathing.
So what happened is that SOMEONE in the hospital - we're not being told who - decided to put a DEAD woman onto life support.
While I think the right thing has now been done in turning off the life support, I think there's a bit more to discuss.
The stuff we call life support takes over the work of breathing, but it doesn't take over the work of pumping blood around. There has to be a beating heart.
So it isn't completely accurate to talk about ventilating a corpse, or suggesting that this case somehow relates to the deaths that occur every day which rapidly lead to a dead body with no pulse and hence no applicability of "life support".
Brain death is hard to determine and can't be done in a few minutes, and can't be done in the immediate after-math of a resuscitation.
And I have complete sympathy with the doctor that first put this unfortunate woman in intensive care.
One someone has been resuscitated such that a heart beat is present, you cannot at that moment be clear about the likelihood of brain damage or of recovery. Except that if someone isn't breathing and you don't support them you know they definitely won't recover and you won't be able to re-evaluate or change your mind.
So to be honest I think everything was defendable up until the moment when they had a clear diagnosis of brain death and of a non-viable fetus. At which point they seemed to go off the rails and start fighting the family. Often it is the other way round - the hospital wanting to accept the inevitable and the family desperate to cling to any ray of hope. Which is of course completely understandable.
Posted by Jane R (# 331) on
:
mdijon: quote:
So to be honest I think everything was defendable up until the moment when they had a clear diagnosis of brain death and of a non-viable fetus. At which point they seemed to go off the rails and start fighting the family. Often it is the other way round - the hospital wanting to accept the inevitable and the family desperate to cling to any ray of hope. Which is of course completely understandable.
Agree with all of this.
Posted by Eliab (# 9153) on
:
quote:
Originally posted by PataLeBon:
quote:
Originally posted by Chesterbelloc:
I admit I felt a grim shudder when reading this setion of the news report: quote:
[F]amily lawyer, Jessica King, said, "Pregnant women die every day. They die in car accidents, of heart attacks and other injuries. And when they die, their fetus dies with them. It's the way it's always been and the way it should be."
I read it as asking why the hospital was playing God. She had something fatal happen to her unexpectedly when she was 3 months pregnant.
The hospital for the last 2 months have prevented nature and what some people may believe is God's Will from taking it's course.
It goes back to the line between us taking actions that help God and taking actions against the will of God.
What happened to this woman was an act of God. What happened afterwards is of your (and the family's) own interpretation. I'm very loathe (in almost any circumstance) to go against a families religious beliefs.
It's a disturbing comment because it sets out a view which, though understandable in these unusual circumstances, could not possibly lead to a principled way of deciding them. It is not a sound moral principle that if a pregnant woman suffers a fatal illness or injury, her child "should" die with her. Imagine a case where a woman 24 weeks pregnant begs the paramedic in the ambulance to do what he can to save her baby (and, if it's thought to be a relevant consideration, the woman's family supports that), is this family lawyer really saying that the hospital "should" let it die? Of course not.
The 'playing God' argument is nonsense for the same reason. Hospitals exist to 'play God'. The whole point of building one, working in one, going to one, is that people who would otherwise have suffered and died get to be happy and live. There is not some category of illness that it is blasphemy to treat.
The relevant principle here is about who has the authority to make a choice given that the woman herself couldn't (well, there's also the 'pro-life' stance, but I'll let the pro-lifers make that case). There are different answers to that which are based on principled reasoning, arguments (both ways) about rights and authority that would still work if the circumstances had been a little different. Statements like the one quoted above could not possibly be applied as a sensible general principle, or, if they were, the implications would be unacceptable to almost all of us.
Posted by art dunce (# 9258) on
:
A 24 week fetus is close enough to viability to survive outside of the woman. Before viability the fetus is completely dependent on the woman and if she dies so does the fetus. I don't see what is so shocking in that. Sad, yes, but a reality of life. If the fetus is very close to viability the woman or her legal proxy could choose to try and add time but no one should be compelled. I find the notion that pregnancy involves nothing more than a woman providing wetware repellant and it devalues the entire, complex process. I do not see how the ends can justify the means when the means involve mechanically forcing a corpse to gestate. That strikes me as trying to play God.
Posted by Eliab (# 9153) on
:
quote:
Originally posted by art dunce:
A 24 week fetus is close enough to viability to survive outside of the woman. Before viability the fetus is completely dependent on the woman and if she dies so does the fetus. I don't see what is so shocking in that. Sad, yes, but a reality of life.
Yes. And what happens when (not if) the human race has sufficiently advanced technology that it need no longer be a reality of life? Are you arguing that it would be wrong to save a foetus at 14 weeks gestation, if it could be done affordably and safely and if all its family agreed? Because that is what the lawyer's comment ostensibly means, and I cannot imagine that she actually intends it.
quote:
If the fetus is very close to viability the woman or her legal proxy could choose to try and add time but no one should be compelled.
What counts as "very close"? Because it seems to be that you are freaked out by the idea of a mostly-dead woman being kept in a prolonged state of artificial 'life' for the sake of her child, but not necessarily by the idea of a child being saved from the body of a mostly-dead woman, and want to distinguish the two. And for that you need some principle beyond your visceral distaste.
Also, who's talking about anyone being 'compelled'? Almost everyone who has posted here seems to agree that if we had access to the woman's own decision about her body that would be decisive. We're really only differing about who gets to say what she likely would have chosen OR what would be in her interests OR what they want to happen, given that we can't ask her.
quote:
I find the notion that pregnancy involves nothing more than a woman providing wetware repellant and it devalues the entire, complex process.
Who exactly is defending such a notion?
As it happens, I don't share your visceral distaste in this case. I think you have failed to distinguish the concept of reducing a human being to the status of incubator (what's going on in the sci-fi fantasies referenced on the last page) which is something obviously destructive to human dignity, and the act of saving what can be saved from a tragic event, which doesn't degrade or devalue anyone.
I wouldn't mind if someone wanted to cut up my corpse for an anatomy lesson to help a would-be surgeon to improve their skills. I would strongly object to being killed for such a purpose. See the difference?
quote:
I do not see how the ends can justify the means when the means involve mechanically forcing a corpse to gestate.
Are you saying that the means (assuming, for the moment, that the means might actually be effective as it appears they were not in the real-world case) are inherently wrong? That mechanically causing a corpse to gestate is unjustifiable even if the previous occupant of that corpse positively wanted and chose to be preserved so as to save her child?
Or is 'forced' in your sentence there to mean 'against the known wishes of the dead person'? Very few people are arguing that we should act against her wishes.
quote:
That strikes me as trying to play God.
So? Why's that wrong.
I've got a mechanical aortic valve. The one God gave me was fucked. A surgeon opened up my chest, cut it out, and replaced it. More than sixty years ago that would have been impossible, and I'd have died a lot sooner than I currently hope to. That's completely unnatural, directly opposed to the way God made my body. I'm cool with that.
There's nothing wrong with sustaining a human body mechanically to some good purpose. It's a good thing for hospitals to play God.
There isn't a principled reason why medical procedures that happen to freak you out are 'playing God' and wrong, and others that you don't mind so much aren't. It's all intervention in the natural world. It's all artificial manipulation of human bodies. It's all playing God, or none of it is. The principled reasons to make moral distinctions lie in questions of consent and authority and acting in the best interests of patients. The key question for this particular case is really "In what circumstances should one person decide what happens to another person's body if that body is brain-dead and pregnant?"
That some people have a strong emotional preference for one or other option is beside the point: there are plenty of people whose natural instinct would be to fight for the child's life and who feel that quite as much as you are repulsed by the idea of a dead person being artificially sustained as an incubator. The moral question is not about which set of people are right (that's unanswerable in a free society), it's about whose views we listen to in any given case. That question demands a principled answer, not a visceral one.
Posted by mousethief (# 953) on
:
Taking a viable baby from a dead woman by section, and keeping a woman's body "alive" to act as a macabre human incubator for a non-viable baby are two quite different things.
Posted by mdijon (# 8520) on
:
It is macabre. And applying such measures to preserve a non-viable fetus is stupid as well as macabre.
But I don't think a "this is macabre" is a very trustworthy moral compass.
Many people find it macabre to open up a man's abdomen, retract back the fat, guddle around among the bowels and giblets until you find an appendix and then suture and snip off said appendix. Of course it is life-saving in certain circumstances and we think it is normal now. (Although possibly without witnessing the event).
It is pretty macabre to open up a dead body and remove the kidneys to transplant into someone else. Especially if you had to ventilate a brain-dead road traffic victim for a bit longer in order to get the organ retrieval team in.
But I say all these things, with appropriate consent, are ethically sound. Medical teams do things that look or feel macabre every day, and can't use that as a guide to ethics.
Posted by mousethief (# 953) on
:
I hope you'll forgive me for saying this, but I never said or implied otherwise.
Posted by mdijon (# 8520) on
:
I most certainly do forgive you, even though you are well within your rights to point it out.
And perhaps you'll forgive me for leaping on the word macabre in that way. In medical ethics that is a particular button for me. Same with accusations of "playing God". It is simply a label for actions that the speaker doesn't approve of rather than a consistently applicable category, as Eliab describes in detail above.
[ 29. January 2014, 05:38: Message edited by: mdijon ]
Posted by Jane R (# 331) on
:
Eliab: quote:
Also, who's talking about anyone being 'compelled'? Almost everyone who has posted here seems to agree that if we had access to the woman's own decision about her body that would be decisive. We're really only differing about who gets to say what she likely would have chosen OR what would be in her interests OR what they want to happen, given that we can't ask her.
This entire thread is about the family of the dead woman being compelled. The woman in question had made her wishes about end-of-life care very clear. Her family asked for these to be respected.
The hospital refused to do this.
As Doublethink pointed out earlier, NHS guidelines don't say explicitly what to do in this situation (possibly because it's so rare) but extrapolating from the guidelines on what to do with an organ donor who happens to be pregnant suggests that if the foetus was close to viability they would try to deliver a live baby, which might involve keeping the (brain-dead) mother hooked up to life support for a short time and might even involve overriding the wishes of the next of kin. That isn't comparable to this situation, though; when Ms Munoz died she was still in the first trimester and not even close to viability.
Posted by JoannaP (# 4493) on
:
quote:
Originally posted by Eliab:
The relevant principle here is about who has the authority to make a choice given that the woman herself couldn't (well, there's also the 'pro-life' stance, but I'll let the pro-lifers make that case). There are different answers to that which are based on principled reasoning, arguments (both ways) about rights and authority that would still work if the circumstances had been a little different. Statements like the one quoted above could not possibly be applied as a sensible general principle, or, if they were, the implications would be unacceptable to almost all of us.
Surely, one of the relevant principles here is the definition of "patient". The hospital insisted that Mrs Munoz was a patient, despite being brain dead, and therefore covered by the law whereas her family believed that corpses can't be patients.
[typo]
[ 29. January 2014, 11:55: Message edited by: JoannaP ]
Posted by mdijon (# 8520) on
:
The duty of care to a patient doesn't end after death. Confidentiality, dignity, respect of previously expressed wishes are the typical focus of the duty of care, rather than trying to bring a fetus to term, but in certain circumstances (not this case) I think a hospital could have a duty of care that included delivering a fetus.
Posted by North East Quine (# 13049) on
:
Originally posted by Eliab:
quote:
Yes. And what happens when (not if) the human race has sufficiently advanced technology that it need no longer be a reality of life? Are you arguing that it would be wrong to save a foetus at 14 weeks gestation, if it could be done affordably and safely and if all its family agreed? Because that is what the lawyer's comment ostensibly means, and I cannot imagine that she actually intends it.
We are a long, long way from being able to save a foetus of 14 weeks gestation, let alone affordably and safely. What happens when we can, can be decided then. This experiment to try to save a 14 week foetus produced a baby which, at 22 weeks, had heart malformation, undeveloped sexual organs, hydrocephaly and deformed limbs, and was not viable.
Posted by mdijon (# 8520) on
:
We don't know if that is an inevitable consequence of a fetus with abnormal gestational support (i.e. a brain-dead woman on a ventilator) or a consequence of the lack of oxygen when she suffered her cardiac/respiratory arrest.
Either way I don't think it was predictable.
Also this isn't really an experiment in the sense of being done as a bit of research - i.e. "let's see what happens if...".
It may have been misguided and wrong, but I think it is likely the doctors and nurses involved really thought they were doing the best for their patient, rather than just capriciously "seeing what would happen". It may seem like an experiment in the sense that no-one could be really sure what would happen, but that is very often the case in medical treatment. One is always generalizing from published or personal experience and making leaps of faith that these generalizations are justified.
Posted by Timothy the Obscure (# 292) on
:
I think it more likely that the hospital's attorneys thought there was a greater risk in a politically-minded district attorney bringing criminal charges if they removed life support than in the family bringing suit, which could only result in an order to remove it. Once they had a judge backing up the family it became safe to do what they knew all along they should have done.
Posted by mdijon (# 8520) on
:
That seems rather uncharitable. There are people on the thread who argue from their own moral point of view that the hospital ought to have done everything it could to preserve the fetus. I don't agree with them, but I don't impugn their motives.
Likewise as I describe above the decision to start ventilation was likely to be the right one in my view. When to stop is always tricky. To use the phrase "knew all along" seems a stretch.
Posted by orfeo (# 13878) on
:
But it's not about whether they morally 'knew all along', it's about whether they legally 'knew all along'. The whole thing was not couched in whether they ought, morally/ethically, to comply with the husband's wishes, it was a claim that they COULDN'T.
Posted by mdijon (# 8520) on
:
I would hope there were some people worrying about the morality as well as the legality. No argument from me that what the eventually did was stupid, but I can certainly see how they doctors might arrive in a situation with a brain-dead pregnant woman on a ventilator through operating in good faith.
Posted by Eliab (# 9153) on
:
quote:
Originally posted by Jane R:
The woman in question had made her wishes about end-of-life care very clear.
I'm not saying you're wrong, but that isn't at all apparent from the articles linked to. If, in fact, she had clearly made a choice about what should happen to her body in these circumstances I think that decides the matter. I'm pro-choice, and it's her body, not the hospital's, not the court's and not her family's.
What I think it is unsafe to do is infer from a general preference (which many people have) not to be kept artificially and pointlessly metabolising after one's brain has died, with a decision to terminate a (wanted?) pregnancy after one's brain has died when there is a chance of a healthy birth. That isn't a pro choice position. It involves taking the answer to one question and treating it as if it were a decision about a fundamentally different situation.
In this case, it seems that there was no real chance of a surviving child, so yes, once that's known the hospital did have a good indication of what the woman wanted, and should have acted on it. The moral question we were arguing about at the start of this thread no longer applied to this particular case. I still think it worth having a principled answer to that question.
quote:
Originally posted by JoannaP:
Surely, one of the relevant principles here is the definition of "patient". The hospital insisted that Mrs Munoz was a patient, despite being brain dead, and therefore covered by the law whereas her family believed that corpses can't be patients.
"Is she a patient?" seems to have been a question created by the way that the Texas directive was worded, more than a question of moral principle, but yes, I agree that the issue of what rights a dead person has, and what duties are owed to them, is an important principle here.
And it seems to me that those who are arguing for their preferred option by insisting that the woman was dead, and therefore has no continuing interests to be considered, are making an unprincipled* argument. Because, in general, we do think that a dead person's wishes about what should happen to their body are important and should be respected. Many people try to honour their deceased family member's preferences about the use of bodies for organ donation or scientific purposes, and method of disposal, even when their own personal preferences are different, and even when they are under no legal obligation. It's the decent thing to do. I think few of us would be happy to accept a general principle that the wishes of the dead can be disregarded.
It seems to me that the decision to terminate a pregnancy is one of even greater moral and personal significance than those decisions which we in general regard ourselves as morally obliged to respect. Therefore I think that whether the woman is considered legally dead, or not, or legally a patient, or not, her choice matters more than anyone else's. The question for me is what happens if she can't make or communicate a choice. Put bluntly, the question is "In what circumstances do I get do decide whether you should have an abortion?"
(*in the technical, rather than the pejorative, sense of 'unprincipled')
[ 30. January 2014, 08:44: Message edited by: Eliab ]
Posted by orfeo (# 13878) on
:
quote:
Originally posted by mdijon:
I would hope there were some people worrying about the morality as well as the legality.
Why?
The main point of the law here is that it's the patient's morality that gets followed, not the hospital's. As is the case with most medical law.
That's the problem with worrying about 'the morality'. Most people can only worry about their morality, and aren't very good about worrying about other people's morality on the other person's behalf.
Worrying about the legality is a lot more straightforward because there is only one law.
Posted by mdijon (# 8520) on
:
quote:
Originally posted by orfeo:
Most people can only worry about their morality, and aren't very good about worrying about other people's morality on the other person's behalf.
What you're articulating is the principle of autonomy. It is, I believe, morality that makes us value that.
The problem with "just follow the patient's morality" is that we can't always ask them, as in this case. Where we can I agree, people should never have interventions forced on them that they don't want except in very rare cases of public health imperative.
However sometimes what they want to know might be in conflict with someone else's confidentiality, or an intervention they request might not be consistent with good medical practice.
What the family report of their wishes may not be completely coherent, and we may not be able to verify it.
I wish it were simple.
[ 30. January 2014, 09:19: Message edited by: mdijon ]
Posted by Jane R (# 331) on
:
Eliab: quote:
In this case, it seems that there was no real chance of a surviving child, so yes, once that's known the hospital did have a good indication of what the woman wanted, and should have acted on it. The moral question we were arguing about at the start of this thread no longer applied to this particular case. I still think it worth having a principled answer to that question.
I think we are basically in agreement, then. I am generally pro-choice, but if there had been a realistic chance of delivering a live child I would agree that the hospital should have tried to do that; in those circumstances I think you could argue that the hospital has a duty of care to the (potential) child as well as to the mother.
What concerns me is the attempt to keep the body on life-support for such a long time in the hope that the pregnancy would continue normally, despite the fact that Ms Munoz had suffered brain death. Pregnancy is a very complicated symbiotic relationship. We know quite a lot about it, but we don't know enough about how the normal development of the foetus is affected by things that happen to the mother.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by mdijon:
quote:
Originally posted by orfeo:
Most people can only worry about their morality, and aren't very good about worrying about other people's morality on the other person's behalf.
What you're articulating is the principle of autonomy. It is, I believe, morality that makes us value that.
The problem with "just follow the patient's morality" is that we can't always ask them, as in this case. Where we can I agree, people should never have interventions forced on them that they don't want except in very rare cases of public health imperative.
However sometimes what they want to know might be in conflict with someone else's confidentiality, or an intervention they request might not be consistent with good medical practice.
What the family report of their wishes may not be completely coherent, and we may not be able to verify it.
I wish it were simple.
I recognise all those complications, but the law does too, and has ways of dealing with them.
And I think the hospital understood all the general principles as well. The only reason they didn't follow them was because of a particular interpretation of a single provision. An interpretation that didn't last very long at all in court.
Which is why we get into the 'did they know all along' territory. Because it seems that what was preventing them from disconnecting the machines WASN'T any kind of ethical concerns or worry that they couldn't ascertain this woman's intentions or anything of that kind. Their stated position the whole time had absolutely nothing to do with those kinds of legitimate difficulties. Their stated position hinged entirely on labelling a brain-dead woman as a pregnant patient, and ignoring the bits of Texas law that said brain-dead means you're legally dead.
Almost every article that anyone linked to on this thread had quotes from legal experts, including ones that helped draft the law in the first place, saying that the hospital was misreading the law. It seems terribly strange that either the hospital didn't seek legal advice, or that the hospital's lawyers managed to come to the opposite conclusion to every other lawyer around.
Posted by orfeo (# 13878) on
:
To put it succinctly, not once did the hospital's position rely on the difficulties in ascertaining FACTS: what did this woman want? Had she thought about this situation? Could the baby make it?
No, the hospital's position consistently relied on a view of the LAW. It's not difficult to read a law. Yes, it might be difficult to ascertain whether particular facts exist that the law uses to determine the outcome, but that's not this case. Everyone knew the exact same facts - the husband knew them despite the hospital's strange attempts to not actually confirm that his wife was braindead.
Posted by mdijon (# 8520) on
:
I don't think the law covers every situation. In fact one might argue this is an area where it doesn't.
We establish now that the law does not mandate keeping the ventilator on. The law does not, as far as I know, therefore instruct the switching off of the ventilator in this situation.
That leaves the doctors to talk to the family and agree on what should be done, based on common sense, their beliefs about what the patient would want, and what I call morality.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by mdijon:
We establish now that the law does not mandate keeping the ventilator on. The law does not, as far as I know, therefore instruct the switching off of the ventilator in this situation.
It instructs following the instructions in a lawfully executed 'living will'. And if we're not satisfied that we have such a thing covering this situation, it instructs following the wishes of the next of kin. Which, as I pointed out a couple of pages ago, pointed in the same direction so there was no possible conflict between those two options.
Even when you say 'the doctors should talk to the family', you're expressing a principle of law even if you don't recognise it as such.
[ 30. January 2014, 12:47: Message edited by: orfeo ]
Posted by mdijon (# 8520) on
:
Actually I'm not sure there's any directive in law to follow the wishes of the next of kin. At least certainly not in the UK, Texas appears to have some weird medical laws.
And that is kind of inevitable really. Why should my next of kin have such power of my medical management? We may have argued last week and vowed never to talk again. They may not be very sensible. I might need protecting from their wishes.
Posted by Doublethink (# 1984) on
:
The press reports state that husband and wife had talked about things, and views were known in the family - but there was no extant living will or advance directive.
Posted by Organ Builder (# 12478) on
:
quote:
Originally posted by Eliab:
I'm pro-choice, and it's her body, not the hospital's, not the court's and not her family's.
In most US states (maybe all, but I'm not qualified to say), once the patient is dead (as this woman was determined to be) the body belongs to the estate, with the executor having full rights over it. In the absence of a will that person would have been her husband; if they had a will it is still likely he would have been her executor.
Posted by mousethief (# 953) on
:
quote:
Originally posted by mdijon:
And that is kind of inevitable really. Why should my next of kin have such power of my medical management? We may have argued last week and vowed never to talk again. They may not be very sensible. I might need protecting from their wishes.
But that's true of anyone to whom you might assign power of attorney for your medical care. It proves too much, as they say. SOMEbody has to make those decisions, and in the absence of any advance directive, next-of-kin makes more sense than anybody else.
[ 30. January 2014, 16:50: Message edited by: mousethief ]
Posted by ken (# 2460) on
:
quote:
Originally posted by Organ Builder:
quote:
Originally posted by Eliab:
I'm pro-choice, and it's her body, not the hospital's, not the court's and not her family's.
In most US states (maybe all, but I'm not qualified to say), once the patient is dead (as this woman was determined to be) the body belongs to the estate, with the executor having full rights over it. In the absence of a will that person would have been her husband; if they had a will it is still likely he would have been her executor.
Same in Britain (and the very different legal system of France). If you are dead your body now belongs to your heirs. (And if you are alive the hospitals first line should be to keep you alive). And you can't leave your body in our will because you do not own your body, you are your body. A live human is not the sort of thing that can be property. So until your are dead your body is not property, not anyone's property, including your own.
Posted by Jane R (# 331) on
:
Not sure 'belongs' is the right word exactly... perhaps it would be more accurate to say that your heirs have responsibility for (disposing of) your body. Otherwise how is it possible for people to donate their bodies for medical research? According to Ken's analysis, when you're alive you can't do it because you still need the body yourself; when you're dead you no longer have rights over it.
Posted by mousethief (# 953) on
:
quote:
Originally posted by Jane R:
when you're dead you no longer have rights over it.
Not sure if that's entirely true. Dead people do have rights, for instance to determine how their wealth is distributed, if provision therefor is made before they die.
Posted by Organ Builder (# 12478) on
:
quote:
Originally posted by Jane R:
Not sure 'belongs' is the right word exactly... perhaps it would be more accurate to say that your heirs have responsibility for (disposing of) your body. Otherwise how is it possible for people to donate their bodies for medical research?
In the US, "belongs" is legally the right word--because once you die, the law considers your body "property" just as a nice vase or a table would be property. I believe that regardless of what has been done in advance, the institution has to wait on an executor to release the body (unless the institution has been made executor). Many institutions won't insist on taking a body unless the family agrees, anyway. That's one reason why it is really important to do the paperwork and choose your executor carefully.
Posted by Crœsos (# 238) on
:
quote:
Originally posted by mousethief:
quote:
Originally posted by Jane R:
when you're dead you no longer have rights over it.
Not sure if that's entirely true. Dead people do have rights, for instance to determine how their wealth is distributed, if provision therefor is made before they die.
I think a more accurate way of expressing this is that living people have rights to plan for the distribution of their wealth upon their death, but the right (and ability) to make such plans expires when they die.
Posted by mdijon (# 8520) on
:
quote:
Originally posted by mdijon:
And that is kind of inevitable really. Why should my next of kin have such power of my medical management? We may have argued last week and vowed never to talk again. They may not be very sensible. I might need protecting from their wishes.
quote:
Originally posted by mousethief:
But that's true of anyone to whom you might assign power of attorney for your medical care. It proves too much, as they say. SOMEbody has to make those decisions, and in the absence of any advance directive, next-of-kin makes more sense than anybody else.
Indeed, if you have assigned power of attorney you have accepted a certain risk but made a judgement based on someone's character and trust them. If you haven't it certainly dose make sense to talk to the next-of-kin (however defined - there's no precise legal definition and several different parties may have a similar claim and say different things), but it doesn't make sense to have them make the decision.
If the next of kin in this case asked for the woman to be kept alive then I don't think the hospital would do right to simply follow their instructions. The hospitals job in that case would be to talk them out of it so that a futile few months were not spent on a ventilator before the inevitable loss of the fetus. If they couldn't talk the family out of it then the hospital might have to go to court to establish their right to switch the ventilator off.
Posted by mdijon (# 8520) on
:
quote:
Originally posted by Jane R:
Otherwise how is it possible for people to donate their bodies for medical research? According to Ken's analysis, when you're alive you can't do it because you still need the body yourself; when you're dead you no longer have rights over it.
In practice the family have the right to override your expressed wishes in life. In order for the body to be used for medical research, or the organs for organ donation, the family have to respect the wishes you expressed. Many families want to respect their loved one's wishes, but some don't and then they win. If the family can't agree then it gets legal and complicated.
Posted by Jane R (# 331) on
:
So... applying that principle to this situation, once brain death was clearly established and the family asked for the ventilator to be turned off, the hospital should have done it even if it wasn't what Ms Munoz had said she wanted?
Interesting.
Posted by mdijon (# 8520) on
:
Yes. Sounds counter-intuitive, I know, but the point is that patients aren't entitled to demand treatments which are not going to help.
People with inoperable lung-cancer aren't entitled to demand surgeons heroically attempt to operate and people with colds aren't entitled to demand antibiotic prescriptions.
Likewise patients who cannot possibly make a recovery do not have the right to be ventilated indefinitely in the vain hope that they might, and their families don't have the right to demand it either.
Posted by mdijon (# 8520) on
:
My assumption in the above was that the fetus has been determined to be non-viable.
If the fetus was viable, the mother brain-dead, but had clearly expressed previous wishes that made us think she would want her child to be born at all costs then that is much more tricky. If the family were against it then I think they probably should be the deciding factor, since we don't have much basis for guessing at the outcomes of an early-stage fetus.
Posted by Palimpsest (# 16772) on
:
Many years ago when I was doing AIDS counseling in Boston, I was given a lecture on legal issues by a lawyer who had dealt with a lot of gay couples in those days before civil partnerships and same sex marriages.
One common problem is that the person making the will would want to be buried with their partner. Their estranged family would want to drag the body back to the family plot and pretend the partner didn't exist. The will then could not over-ride the family rights to decide where the body would be buried. One technique the lawyer used was to leave a bequest of money to the family conditional on them allowing the body to be buried where the person wanted. It felt like a strange form of ransom.
Posted by mousethief (# 953) on
:
quote:
Originally posted by Crœsos:
I think a more accurate way of expressing this is that living people have rights to plan for the distribution of their wealth upon their death, but the right (and ability) to make such plans expires when they die.
But not the right to have them carried out.
Posted by Erroneous Monk (# 10858) on
:
quote:
Originally posted by mdijon:
If the fetus was viable, the mother brain-dead, but had clearly expressed previous wishes that made us think she would want her child to be born at all costs then that is much more tricky.
Are you saying that in a hypothetical scenario where the fetus were viable (say 30 weeks) that the next of kin should be allowed to refuse consent for a caesarian? Or that a woman should be allowed to leave a living will refusing consent to a caesarian in such a scenario (however unlikely it would seem to be in reality than any woman pregnant with a wanted child would do that)?
Posted by John Holding (# 158) on
:
There's currently a case in Vancouver where the mother essentially dropped dead of a massive brain seizure. Her fetus was then at (I think) 25 weeks. The father is hoping the baby will reach 30 weeks, at which point the doctors will do a c-section and deliver the baby, and the mother will be taken off life support. Obviously a very different case, as the mother had not contemplated dying, the father desperately wants the child (while agonizing over the fact that as the child is born, his wife will be dying) and the fetus was in good health, so far as anyone can tell, and will probably be able to grow to a point where a c-section can take place.
John
Posted by Chesterbelloc (# 3128) on
:
That's great news, John. And it's precisely why when the lawyer in the original case justified the turning off of the mother's machine by saying: quote:
Pregnant women die every day. They die in car accidents, of heart attacks and other injuries. And when they die, their fetus dies with them. It's the way it's always been and the way it should be.
I shook my head so emphatically.
Posted by art dunce (# 9258) on
:
These recent cases certainly reinforce that all people, but especially pregnant women, should put in writing their directives concerning end of life and extreme measure scenarios so that there is no confusion over how to proceed. We also need to make sure that the law supports people's last wishes.
Posted by mdijon (# 8520) on
:
quote:
Originally posted by Erroneous Monk:
Are you saying that in a hypothetical scenario where the fetus were viable (say 30 weeks) that the next of kin should be allowed to refuse consent for a caesarian?
No, I'm saying the opposite. That the next of kin is entitled to be consulted and to be informed by the doctors, but not to have ultimate veto on the final decision. On the other hand, it is pretty tricky for the medics concerned to go ahead and do the caesarian without consent, and then hand the grieving next of kin a baby to look after. The only easy way out of it is to give it time and try to get the next of kin on board.
quote:
Originally posted by Erroneous Monk:
Or that a woman should be allowed to leave a living will refusing consent to a caesarian in such a scenario (however unlikely it would seem to be in reality than any woman pregnant with a wanted child would do that)?
Except in absolute extremis, when a court order is required, people are entitled to refuse medical treatment they don't want. (Complicated exceptions exist for mental illness and incapacity). So a woman is entitled to leave a living will refusing consent for a casearian section. And in such a circumstance I would expect a court order to be required to overturn that.
Posted by PeteC (# 10422) on
:
My only contribution to this is to report a Vancouver, BC similar case.
Baby Iver
Posted by marzipan (# 9442) on
:
Resurrecting this thread since there is another case (this time in ireland)
It seems that neither the woman's family nor the hospital think she should be kept in life support, but due to the muddy legal situation, the hospital has kept her on life support since 3rd December while it goes through the courts.
She was 15 weeks pregnant when she was declared brain dead.
Posted by L'organist (# 17338) on
:
It is actually worse: the 'infection' that is being spoken of is actually rapid decomposition of the brain tissue, which they cannot establish a bloody supply to, and the toxins being released are getting to the rest of the body - hence the nurses talking about the body being 'puffy'.
There is a real question as to whether the body will survive intact until the 26th when the court is to give its decision...
Frankly the situation is grotesque.
Posted by L'organist (# 17338) on
:
The Court has ruled that the machines can be switched off.
Posted by Doublethink. (# 1984) on
:
I do wish they would kill the foetus before doing that.
[ 27. December 2014, 11:23: Message edited by: Doublethink. ]
Posted by mdijon (# 8520) on
:
I don't think there's any evidence of foetal suffering either way is there?
Posted by Doublethink. (# 1984) on
:
Embryos show pain response and response to aversive stimuli from something like 4 weeks gestation.
[ 27. December 2014, 15:53: Message edited by: Doublethink. ]
Posted by mdijon (# 8520) on
:
I don't believe that. But if it was really true, we would need to have sedative administered to the fetus routinely before terminations, and I would find a more hard-line stance against terminations (including keeping brain-dead mothers alive) more justifiable.
Perhaps that's contentious, but terminating the fetus before the mother's death wouldn't necessarily be a less unpleasant experience for the fetus.
Posted by Doublethink. (# 1984) on
:
I was hoping for quickest possible, rather than necessarilly pleasant.
Posted by Doublethink. (# 1984) on
:
I guess that, based on this, it would do minimal damage to actually administer such a sedative or to kill the foetus quickly rather than let it suffocate in a rotting body.
[ 27. December 2014, 16:16: Message edited by: Doublethink. ]
Posted by mdijon (# 8520) on
:
Suffocate might be the wrong word. It would run out of oxygen as the proximate cause of death, but doesn't have to breathe. I think it would be more akin to dying of poisoning of some sort - where as oxygen levels fall the activities of the fetus would fade away. Suffocate implies breathlessness which doesn't apply.
I think that review is putting forward a particular view based on the evidence that many wouldn't agree with, but its fairly nuanced and doesn't really argue that there is evidence of conscious suffering in the fetus.
Posted by Doublethink. (# 1984) on
:
OK granted poisoning rather than suffocation type breathlessness. But given that sea slugs respond to aversive stimuli, I'd be amazed if something as complex as a foetus has no pain response.
Posted by mdijon (# 8520) on
:
That's exactly the conflation that the review you cited was so careful to avoid. A pain response doesn't equal suffering. Fetuses definitely have pain responses, some of which are demonstrably spinal reflexes and don't require consciousness. Things which aren't conscious can't by most definitions experience suffering.
(I can't imagine anything more appalling traumatic than birth by the way and given that appalling trauma is pretty bad for development think that either a designer or natural selection would want to avoid consciousness at that point. But maybe that's my wishful thinking).
Posted by Doublethink. (# 1984) on
:
You may be right, but you don't know. Regarding birth, I think nature copes by ensuring the baby doesn't remember. Unless a premature baby is not conscious in the incubator, or you have a physiological explanation for how breathing air triggers consciousness.
Posted by mdijon (# 8520) on
:
quote:
Originally posted by Doublethink.:
You may be right, but you don't know.
No I don't know. But all we can go on are speculations based on limited information - and I don't accept that there is a precautionary approach here given the implications of foetal consciousness.
quote:
Originally posted by Doublethink.:
Regarding birth, I think nature copes by ensuring the baby doesn't remember.
Yes, I guess that would work also. Although to go back there isn't a lot of evidence of consciousness in the first place.
quote:
Originally posted by Doublethink.:
Unless a premature baby is not conscious in the incubator, or you have a physiological explanation for how breathing air triggers consciousness.
Sorry, I don't get this bit. If it's relevant, it is well established that you don't need to be conscious in order to breathe.
Posted by Lamb Chopped (# 5528) on
:
It seems to me that the humane thing to do would be to err on the side of assuming pain (or noxious experience, if you want to leave out consciousness) and therefore to medicate. In fact, I don't see any reason against it in this case, given that neither patient (mother or child) is going to survive. Possible bad side effects seem to me to be the only reason to avoid fetal anesthetic in cases where someone IS expected to live.
It reminds me of the debate over anesthetic during newborn circumcision. My doctor said he didn't give a rip what the current theory was, he wasn't going to do such a thing without assuming pain was present and doing what he could to minimize it.
Posted by Doublethink. (# 1984) on
:
quote:
Originally posted by mdijon:
quote:
Originally posted by Doublethink.:
You may be right, but you don't know.
No I don't know. But all we can go on are speculations based on limited information - and I don't accept that there is a precautionary approach here given the implications of foetal consciousness.
quote:
Originally posted by Doublethink.:
Regarding birth, I think nature copes by ensuring the baby doesn't remember.
Yes, I guess that would work also. Although to go back there isn't a lot of evidence of consciousness in the first place.
quote:
Originally posted by Doublethink.:
Unless a premature baby is not conscious in the incubator, or you have a physiological explanation for how breathing air triggers consciousness.
Sorry, I don't get this bit. If it's relevant, it is well established that you don't need to be conscious in order to breathe.
My point being that if the baby is unconcious during birth, there must be some trigger to consciousness - unless new borns are unconscious (perhaps breathing air not fluid). If there isn't such a trigger, and it occurs owing to maturation then premature babies must have no consciousness and presumably late babies would be conscious in the womb. If consciousness is not triggered by birth it must happen before birth surely ?
Posted by mdijon (# 8520) on
:
Yes, I see, good point. I'm not sure babies are conscious right after birth to be honest. The obvious question is when do they become conscious and I don't know. I expect it is a bit like life versus death - apparently a simple dichotomous and obvious distinction, except when one becomes the other. One can be clear at a certain point but it's pretty hard inbetween.
By the way, the woman concerned will most likely be on sedation of some sort in an intensive care situation and many of the drugs would cross the placenta.
Posted by Palimpsest (# 16772) on
:
The termination is done in a few minutes. The time to consider the pain of the fetus should have been when the hospital decided to wait a few weeks for a court ruling while the fetus was in a dead mother with an infected brain. The situation is long past remedy.
Posted by mdijon (# 8520) on
:
By all accounts the hospital reasonably felt constrained by the way the constitution was written. I think the situation is wrong but I don't think all the blame can be put on the hospital.
Posted by North East Quine (# 13049) on
:
Originally posted by mdijon:
quote:
I'm not sure babies are conscious right after birth to be honest. The obvious question is when do they become conscious and I don't know.
Newborns are given an AGPAR score when they are one minute old. I assume they are conscious one minute after birth, as the AGPAR test seems predicated on consciousness. (NB - IANA(M)D)
Posted by Jane R (# 331) on
:
I think there is a distinct possibility that foetuses are conscious in the later stages of pregnancy. This is supported by research into language development, which has shown that newborn babies pay more attention to language sounds than any other kind of noise and can distinguish between the sounds of their parents' language and other languages - see here, for example. IIRC someone did a study that showed they could even recognise specific stories read to them whilst they were in the womb, but I can't remember the reference off the top of my head.
I'm not suggesting that this is possible from the moment they begin to show a pain response, of course. But from 20 weeks, when they start to show brain activity, I think we should give them the benefit of the doubt.
And I am still 'pro-choice'.
Posted by North East Quine (# 13049) on
:
Anecdotally, I was sure that my second recognised her older sibling's voice pretty much from birth; he was talking incessantly at around my stomach height throughout my pregnancy.
Also anecdotally, elder child's waking / sleeping pattern after birth mirrored his kicking / not kicking pattern before birth. When I remarked on this, my midwife said "Did you expect him to be a different person just because he's been born?" followed by the horribly prophetic warning "Just wait till he's a teen with the same sleep pattern..."
(Also pro-choice)
Posted by mdijon (# 8520) on
:
quote:
Originally posted by North East Quine:
Newborns are given an AGPAR score when they are one minute old. I assume they are conscious one minute after birth, as the AGPAR test seems predicated on consciousness. (NB - IANA(M)D)
I think that's a bit more crude an assessment than what I'm talking about. If they cry and wriggle they have a high Apgar score and that's fine for declaring them normal and healthy. I don't think it really tells us how much conscious awareness they have of their surroundings and experiences. An adult in a persistent vegetative state might move spontaneously and be vocal in response to stimulus, but that doesn't mean they are conscious and aware.
Posted by Doublethink. (# 1984) on
:
But a new born does experience pain, regardless of whether its self-aware or not. The same is true for someone with end stage dementia who is not comatose.
Posted by mdijon (# 8520) on
:
I guess my trouble is the word "experience". I don't know exactly what it would take to demonstrate that. It's clear that some people in coma or in vegetative states can demonstrate responses to painful stimuli. I don't know that they "experience" pain though.
To be very crude about it, awareness and conscious thought does seems to require cortical activity, and pain responses can be seen in people without any cortical activity.
Posted by orfeo (# 13878) on
:
What sort of 'responses' are you claiming can occur without cortical activity?
Posted by mdijon (# 8520) on
:
Brainstem responses and spinal responses.
Posted by orfeo (# 13878) on
:
Right, gotcha, the spinal one makes sense. I guess we have to be careful with terminology, though, because that isn't really about an expression of pain, it's a response to a stimulus that, if awake, we would experience as painful.
I have to say, this is the first time I can remember anyone suggesting that unborn infants might not experience the same sensory inputs that we do. I thought it was pretty much a given that the relevant mechanisms were developed before birth. Not all of them equally: newborns don't have much focus to their vision for example. But I thought everyone agreed these days the basics were there.
But on the question of pain, there's even a convenient Wikipedia article on it. Most of that does relate to newborns, but there are some references to knowledge about fetal nervous systems as well.
[ 31. December 2014, 13:36: Message edited by: orfeo ]
Posted by Doublethink. (# 1984) on
:
I have to say, having had a read around I am inclined to accept mdjon's position (which is a relief really). I am persuaded by the evidence that the relevant pathways in the brain develop between 23 and 30 weeks, and therefore pain perception is not possible before that time in either the born or unborn.
I don't think consicous thought is a requirement to perceive pain, awareness is, but also the correct nerve and cortical pathways. After all, there are people in the world with no pain perception because these funcitons have not developed properly.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Doublethink.:
I have to say, having had a read around I am inclined to accept mdjon's position (which is a relief really). I am persuaded by the evidence that the relevant pathways in the brain develop between 23 and 30 weeks, and therefore pain perception is not possible before that time in either the born or unborn.
Well, that wasn't actually mdijon's position.
I find between 23 and 30 weeks thoroughly believable, though.
Posted by mdijon (# 8520) on
:
For all my prevaricating over the nature of conscious experience, active cortical responses to pain and so on my own vote is that terminations from 23 week onwards should not be legal outside extreme situations.
Posted by Jane R (# 331) on
:
I'd agree with that. It seems to fit with the language development evidence I mentioned earlier.
Posted by mdijon (# 8520) on
:
To be pedantic though, I don't think one can base much on that study of 60 or so newborns per group, given that it contradicts most other evidence that newborns don't cry in a language-specific way.
Posted by Jane R (# 331) on
:
True, but doing this kind of research on newborns is so difficult that there are very few studies to compare it with. You need specialists in phonetics/phonology to analyse the cries properly and most of them are more interested in documenting exotic endangered languages before they disappear, or studying singer's formant, or similar.
And a sceptic will argue that you're imagining things anyway, like the man who gleefully informed me that my two-month-old baby wasn't really smiling at me but just had wind (actually, she'd learned to smile about two weeks earlier).
[ 05. January 2015, 08:16: Message edited by: Jane R ]
© Ship of Fools 2016
UBB.classicTM
6.5.0