End of life decision making is controversial.  Even planning for the end of life can be controversial, as we saw when discussions regarding end of life care were branded as “death panels.”  “Death with Dignity” laws allow (but do not encourage) assisted suicide for those who are terminally ill; the Catholic bishops have responded that

a society that devalues some people’s lives, by hastening and facilitating their deaths, will ultimately lose respect for their other rights and freedoms.  (See more on the bishops’ thoughts on health care here.)

The disability rights group Not Dead Yet views laws allowing assisted suicide or withdrawal of life sustaining treatment  as “deadly forms of discrimination” against people with disabilities.  In 2005, the country was captivated by the case of Terri Schiavo, who lived in a persistent vegetative state for 15 years while her husband and parents battled about whether or not her body should be kept alive.  Her husband ultimately succeeded in following what he said were Terri’s wishes–to be allowed to die–but controversy over the case still lives.

One way that people of sound mind can make end of life decisions before reaching the end of life is by having an advance directive or “living will.”  All states allow such directives, though there is some variation around requirements (you can get information for your state here).

According to the American Bar Association, an advance directive does not guarantee that a person’s wishes will be followed. It does release physicians and others from liability if they follow the person’s wishes.  It makes allowing death less controversial; providers and family members are more likely to know exactly what the dying person wants.  But generally, even if there is no legal advance directive, life support can be removed if everyone (health care team and family members) believe that is the right course of action (for a person who can longer make decisions or survive independent of technological assistance).

Except if that person is pregnant.

In the case of a pregnant woman, the state decides, and in many states–no matter what the woman, her family, or her medical care team want–her advance directive cannot be followed.  She must be kept alive as an incubator for her fetus.

This issue has come to light because of the case of Texas resident Marlise Munoz.  Marlise and her husband Erick, the parents of a toddler, “had talked specifically about not wanting ‘to be kept alive by machine.’”  In November 2013, Marlise, who was 14 weeks pregnant, collapsed.  Reports suggest that she may have suffered a pulmonary embolism; in any case, her brain was deprived of oxygen, she has not regained consciousness, and as of December 23, 2013, she remains in intensive care on a ventilator.  Erick said said he has reached “the point where you wish that your wife’s body would stop.”  He believes that is his wife’s wish as well.

But Texas law trumps the wishes of the couple.  Marlise must be kept artificially alive until the fetus is developed sufficiently to live outside her body.  The health of the fetus (who was deprived of oxygen when Marlise was) is not known–it is only known that it has a heartbeat.  And that heartbeat is more important to Texas law than the humanity of the woman who sustains it or of the man who must raise the resulting child.

The Center for Women Policy Studies published a report by Megan Greene and Leslie Wolfe, “Pregnancy Exclusions in State Living Will and Medical Proxy Statutes,” which  summarizes the legal rights of pregnant women to have their end-of-life wishes respected with the same accord given other human beings.

According to the report (follow the link above to get the specific information about your state):

  • 12 states automatically invalidate a woman’s advance directive if she is pregnant.
  • 14 states follow the Uniform Rights of the Terminally Ill Act (URTIA), which requires that a pregnant woman be given life sustaining treatment  if it is probable that the fetus will develop to the point of live birth.  Four of these states offer an exemption “if continuing treatment will be physically harmful to the woman or prolong severe pain which cannot be alleviated by medication.”  In the remaining 10 states, apparently the woman just has to suffer.
  • 4 states use a fetal viability standard to determine the enforceability of an advance directive.
  • 14 states (and D.C.) have no statutory language regarding advance directives and  pregnancy.  This opens the cases of pregnant women to protracted legal battles.
  • 5 states offer clear options regarding pregnancy that allow fertile women to specify if they would have different wishes if they were pregnant.

As noted by the blogger mataliandy in the Daily Kos in 2005:

In many states, the fetus takes precedence over the mother. If you are in any stage of pregnancy, your Living Will could be as invalid as if you had never written it.

If you are in a coma…it’s preferred that you remain comatose, and maybe die or slide into a persistent vegetative state as a result, so the fetus you may not even know exists can probably die anyway, but later.

If you are pregnant, no matter who you are, no matter what good you may have brought to this world, no matter your wishes, no matter the impact on your family, you are an afterthought.

In most states, if you are pregnant, the “culture of life” does not include your life beyond the extent to which your mechanically-supported body can be used for breeding. If you are in a coma, your potential recovery must be sacrificed so that the breeding function can continue. If you are vegetative, you are not worthy of a dignified end until the breeding function ends.

So in case you were wondering if women have the same human rights as other humans, they don’t.  And if we devalue women’s humanity when they are pregnant, doesn’t it follow, in the words of the Catholic bishops, that society will ultimately lose respect for women’s other rights and freedoms?

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